In a case where the Defendant was awarded a successful bid on the studio buildings and land in the construction site owned by the Defendant, and the Defendant was indicted for destroying the Defendant’s property by installing pl cards and CCTV at the construction site and removing them, the case holding that the Defendant’s act constitutes a justifiable act on the grounds that the Defendant’s act of removing pl cards, etc. constitutes an element of the crime of causing property damage, but it is reasonable to view that the Defendant’s pl cards, etc. were installed after the Defendant’s acquisition of ownership, regardless of whether the Defendant’s claim for the construction cost was held.

The Defendant was awarded a successful bid of the studio building and land in the construction site owned by Party A (hereinafter “building”). It is a case prosecuted for the Defendant’s damage of Party B’s property by removing a plug card and a CCTV (hereinafter “fudio card, etc.”) with the content that “this building would be in the middle of the exercise of the right of retention”) that did not receive the construction cost from the previous owner Party A, and that Party B, who claimed a right of retention, claimed a right of retention, was installed at the construction site.

Considering the general function of CCTV, the purpose of installation of the flag card (the means of occupation and public announcement thereof) and the place of installation, etc. of the flag card, the act of removing the flag card by the defendant constitutes an element of property damage and damage. However, the defendant acquired ownership by completely paying the proceeds of sale after obtaining permission for sale of the building, etc. on the other hand, the defendant did not report the right of retention of the building in the auction case, and before that, there was no flag card in photographs taken by the court enforcement officer at the time of the investigation into the current status of the auction case on the building, and the result of the investigation is not separately stated as the possessor of the building, and since it is not about the date of installation of the flag card, etc. immediately after that of this case, it is reasonable to view that the flag card, etc. by the defendant was installed after the acquisition of the ownership of the flag card, etc., and if so, it cannot be seen that the defendant's act of installing the fla, etc. was unlawful.

Articles 20 and 366 of the Criminal Act; Article 325 of the Criminal Procedure Act

Defendant

Jeong-ho et al.

Attorney Hong-jin

The defendant shall be innocent.

1. Summary of the facts charged in this case

The Defendant was awarded a successful bid for five lots of land and the studio building in construction, such as Jeonbuk-do ( Address omitted), but the victim Nonindicted Party (Nam, 47) failed to receive the construction cost from all owners, and thus, he installed a flue card and CCTV and exercised the right of retention.

At around 10:00 on February 2, 2019, the Defendant: (a) requested a person who was aware of the name of the Defendant at the above construction site; and (b) required the removal of the fix card No. 4 (140,000 won) and CCTV No. 470,000 won (470,000 won) stating that “The building will be in the exercise of the right of retention; and (c) damaged the property owned by the said victim.

2. Defendant's assertion;

With respect to the instant case (hereinafter “auction case”), the Defendant acquired ownership of the instant building, etc. by fully paying the sales price on December 26, 2018, upon receiving a decision to permit the sale of the studio building, etc. (hereinafter “instant building”) recorded in the facts charged. However, if the Defendant visited the instant building immediately after that, there was no 4 card and one CCTV (hereinafter “the instant plug, etc.”) as indicated in the facts charged. The finding of the instant pl cards, etc. was conducted on February 2, 2019 (the date indicated in the facts charged) by the Defendant, which was the date of the completion of the call, and the Defendant had lawfully removed the instant pl cards, etc. in order to prevent the Defendant from interfering with the Defendant’s exercise of ownership over the instant building. Meanwhile, it cannot be said that the Defendant had a lien on the instant building.

In the end, the defendant's act does not constitute the elements of the crime of causing property damage, or at least the illegality is excluded as it constitutes a self-help act or a legitimate act.

3. Judgment on the assertion that the crime of destroying and damaging property does not constitute the elements of the crime

A. Relevant legal principles

The crime of destroying and damaging property is established when a special media records, such as another person’s property, documents, or electronic records, are destroyed or concealed by any other means to impair their utility (Article 366 of the Criminal Act). Here, the crime includes not only cases where goods, etc. are changed into a state in which they cannot be used for the original purpose, but also cases where they are made in a state in which goods, etc. cannot be used for the original purpose as a material destruction but also cases where their utility is deteriorated temporarily (see Supreme Court Decision 2016Do9219, Nov. 25, 2016

B. Determination

The Defendant’s removal of the instant plastic cards, etc., as indicated in the facts charged, is clearly recognized by the evidence duly adopted and examined by this Court, and the Defendant also recognized this. In addition, considering the general function and function of CCTV called “the surrounding monitoring,” the purpose of the victim’s installation of the instant plastic cards, etc. (the victim’s possession and disclosure means around the victim) and the location of installation, etc., it is reasonable to view that the Defendant’s removal of the instant plastic cards, etc., in a state where it cannot play a specific role in the instant plastic cards, etc.

Therefore, the defendant's act constitutes the elements of the crime of causing property damage.

4. Determination on the assertion that illegality is excluded

We first examine the defendant's justifiable acts.

A. Relevant legal principles

1) “Act which does not contravene social norms” under Article 20 of the Criminal Act refers to an act permissible in light of the overall spirit of legal order or the social ethics or social norms surrounding the act. Thus, if a certain act satisfies the requirements such as legitimacy of the motive or purpose of the act, reasonableness of the means or method of the act, balance between the protected interest and the infringed interest, urgency, and supplementary nature that there is no other means or method than the act, it constitutes a justifiable act (see, e.g., Supreme Court Decision 2015Do16496, Jan. 28, 2016).

2) Even if the owner of a real estate, who is legally delivered, finds a banner and a public notice that may seriously obstruct the entry into or lease from the real estate, without his/her consent or permission, and immediately remove or destroy them, it may be deemed that such act is nothing more than a case where it causes damage that may be acceptable by social norms within a reasonable extent necessary for the exercise of ownership of the real estate. This also applies to cases where a civil lawsuit or provisional disposition, etc. was instituted against the attachment of banner and public notice (see the foregoing Decision 2015Do16496).

B. Specific determination

According to the records of this case, the following circumstances are recognized: (a) In light of the relevant legal principles of Paragraph (1), the removal of the Defendant’s instant pl cards constitutes a justifiable act.

① As alleged, the Defendant acquired ownership of the instant building, etc. by fully paying the proceeds from sale on December 26, 2018 upon receipt of the decision to permit the sale of the instant building, etc. as to the auction case. However, the victim did not report the lien on the instant building. On February 20, 2018, the execution officer of the Jeonju District Court conducted an investigation into the current status of auction cases on the instant building, etc., and the photographs of the instant building do not exist at the time, and did not separately indicate that there was the possessor of the instant building. The content (Evidence No. 4 of the evidence submitted by the Prosecutor) stated by the police immediately after the instant case does not relate to the date of installation of the instant display card, etc. (i.e., the date of installation is presumed to be the time when the statement is made). Accordingly, the victim cannot be deemed to have acquired the Defendant’s ownership right after the establishment of the instant display card, etc., regardless of whether the Defendant’s ownership right was acquired.

② The Defendant asserts that, due to the existence of the instant registration card, etc., the ownership of the instant building could not be exercised properly. The Defendant’s assertion is sufficiently acceptable in view of the empirical rule and social norms.

③ The Defendant’s specific method of impairing the utility of the instant display cards is nothing more than removing the same, and it does not constitute an act of destruction. The victim recovered only one CCTV even if all of the instant display cards, etc. were sufficiently recoverable.

5. Conclusion

If so, the facts charged in this case constitute a crime, and thus, acquittal is rendered pursuant to the former part of Article 325 of the Criminal Procedure Act. However, the summary of this judgment is not publicly announced pursuant to the proviso of Article 58(2) of the Criminal

Judge Cho Jin-han