[2] In a case where Gap purchased the land and its ground building owned by the defendant in the compulsory auction procedure, and received an order of delivery from the court, and the defendant was prosecuted for larceny on the ground that he connected to the electric code installed on the outer wall of the building before delivery execution and supplied electricity to a container in possession and used as a warehouse and used for the warehouse, the case holding that the defendant merely used the electricity that he occupied and managed by the defendant from the beginning until delivery execution is performed, and it cannot be deemed that he used the electricity that he occupied and managed by another person, and that the defendant cannot be deemed as having committed larceny

Examining the evidence duly admitted by the first instance court, which maintained the reasoning of the judgment below, the court below was just in finding the Defendant guilty of larceny of fences among the facts charged in this case on the grounds stated in its reasoning. Contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the bounds of the free evaluation of evidence against logical and empirical rules or by misapprehending the relevant legal principles

2. We examine ex officio the larceny among the facts charged in the instant case.

A. The summary of the facts charged in this part of the facts charged is that the Defendant was the owner of the land (location omitted) and the building on its ground (hereinafter “the building of this case”). The victim Nonindicted Party purchased the land and the building of this case in the process of compulsory sale by official auction. The Defendant connects the electric code installed on the outer wall of the building of this case from the end of November 2014 to December 19, 2014 to the line installed on the outer wall of the building of this case and owned by the Defendant and used electricity for a container in storage (hereinafter “the container of this case”). Accordingly, the lower court affirmed the first instance judgment convicting the Defendant of this part of the facts charged on the grounds stated in its reasoning.

B. The theft refers to the removal of the property possessed by another person against the will of the possessor, and the removal of the property from one's or a third person's possession. Whether a certain property is occupied by another shall be determined by considering the intention of control as a subjective element in addition to the scope of management or the possibility of factual management as an objective element, and ultimately, determined from a normative perspective in light of social norms, depending on the shape of the property in question and other specific circumstances (see, e.g., Supreme Court Decisions 9Do3801, Nov. 12, 1999; 2008Do3252, Jul. 10, 2008).

C. According to the reasoning of the lower judgment and the record, the victim purchased the instant land and buildings owned by the Defendant during the compulsory auction procedure, and received an order from the court to deliver the Defendant to the respondent, and delegated the enforcement officer on December 16, 2014 to deliver and execute the instant land and buildings. The Defendant supplied electricity to the instant container by connecting to the electric code installed on the outer wall of the instant building to use the instant container. As a result of the inspection of measuring instruments attached to the instant building, the amount of electricity usage from November 19, 2014 to December 19, 2014 can be seen as 24 km.

In light of the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Defendant occupied the instant building and occupied and managed the electric power coming into the instant building prior to the execution of delivery order. Even if the Defendant supplied the electric power to the instant container by linking the electric code installed in the instant building and used it to the instant container, it is merely merely a use of the electric power possessed and managed by the Defendant, and it cannot be said that the Defendant used the electric power possessed and managed by another person, and it cannot be said that the Defendant had a criminal intent to larceny. Furthermore, the result of the inspection of the measuring instruments attached to the instant building is merely merely a use of the electric power during one month, but it is insufficient to prove that the Defendant used the electric power even after the execution of delivery order, and there is no evidence to prove otherwise.

Nevertheless, the court below held that the above electrical use act of the defendant constitutes larceny. The court below erred in the misapprehension of legal principles as to larceny by recognizing facts beyond the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules or by misapprehending the legal principles.

3. Therefore, the part of the judgment of the court below regarding the theft of electricity should be reversed. Since the court below deemed this part of the facts charged and the remaining facts charged as concurrent crimes under the former part of Article 37 of the Criminal Act and rendered a single sentence, it did not decide on the remaining grounds of appeal and remanded the case to the court below for a new trial and determination, it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)