Defendant

Defendant

Domination of friendly deeds and teare trials

Attorneys Kim Yong-jin (Korean)

Chuncheon District Court Decision 2015MaMa25 decided May 22, 2015

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of grounds for appeal;

The farm road of this case (referring to the “○○ Road” as indicated in the facts charged below) does not constitute a “land passage” of a general traffic obstruction that is freely passed by the general public.

2. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

On March 2014, the Defendant interfered with the traffic of residents who walk around the road by installing a gate at the entrance point and installing a stone tower at the middle of the road, etc. on a non-packaged road with a width of 4 meters located in the Gangwon-gu Military ( Address 1 omitted).

B. The judgment of the court below

The lower court found the Defendant guilty of the instant facts charged.

3. Judgment of the court below

A. Relevant legal principles

1) In a criminal trial, the establishment of a criminal facts ought to be based on strict evidence with probative value, which makes the judge feel true beyond a reasonable doubt. Therefore, in a case where the prosecutor’s proof fails to sufficiently reach the extent of having the aforementioned conviction, even if there is doubt of guilt, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal, the determination should be made in the interests of the defendant (see, e.g., Supreme Court Decision 2010Do14487, Apr. 28, 2011).

2) The purpose of Article 185 of the Criminal Act is to punish any act of causing damage to or infusing land, etc. or significantly obstructing traffic by causing damage to or infusing land, etc. or other means as a crime under the legal interest protected by the said legal interest, and “land access” refers to a place of public nature in which many and unspecified persons, vehicles, and horses are allowed to freely pass through, without limiting to a specific person, (see Supreme Court Decision 2009Do1376, Feb. 25, 2010).

B. Determination

In light of the following facts acknowledged by the evidence duly admitted and investigated by the court below, it is insufficient to recognize that the evidence submitted by the prosecutor alone constitutes a place of public nature where many and unspecified persons or vehicles and horses are allowed to freely pass through, i.e., land.

① The farm road of this case is located within the land owned by the Defendant, the branch where the Defendant installed the main gate as described in the facts charged is the front of the land owned by the Defendant, and the branch where the stone tower is installed is within the land owned by the Defendant.

② At around 195, before the Defendant purchased the instant farmland, the previous owner of Nonindicted Party 1’s land ( Address 2 omitted), which was the complainant’s ( Address 2 omitted), was located on the upper part of the Defendant’s land owned by the Defendant; hereinafter “( Address 2 omitted”) was expanded so that Nonindicted Party 2 could pass through or pass through the Defendant. After that, around 1996, Nonindicted Party 2 purchased a container and installed a farmland and purchased the said ( Address 2 omitted) land around 1997. Nonindicted Party 1 purchased the said ( Address 2 omitted) land from 1996 to set up the farming land ( Address 3 omitted), and Nonindicted Party 2 used the instant farmland as a new building to build up the instant land from around 2014 to 2014, and Nonindicted Party 1 purchased the instant land ( Address 2 omitted). From around 1996 to 196, Nonindicted Party 2 purchased the instant farmland.

As can be seen, Nonindicted 2 and Nonindicted 1 appear to have used the instant farm road other than the Defendant, the owner of the instant farm road (except for Nonindicted 2 and Nonindicted 1, it is difficult to believe that Nonindicted 2 and Nonindicted 1 made a statement at the court below to the effect that there was a timely use of the instant farm road by two or three persons other than Nonindicted 2 and Nonindicted 1), and there is no evidence that the former owner of the land, which was the owner of the instant farm road, permits Nonindicted 1 and Nonindicted 2 to use the said farm road, and Nonindicted 2 used the instant farm road with the Defendant’s temporary use approval from the year 201 to the year 2014, when Nonindicted 1 acquired the land, which was the owner of the instant farm road, from the date 201 to the date 2014.

③ In addition to the instant farm road, there was a road used for the traffic of the public from the existing point of view. However, Nonindicted Party 1’s said road was able to pass at the present time by stockpiling stone embankments around 2014. According to the foregoing, it is difficult to view the land as a blind spot due to the lack of a road other than the instant farm road from its original point of view, and even if the land is a blind spot, it is difficult to see that the person using the instant farm road was only Nonindicted Party 1 and Nonindicted Party 2 (Nonindicted Party 2, with the Defendant’s approval of use) and thus, it is difficult to view the instant farm road as a place of public nature, namely, where many unspecified persons or vehicles and horses are able to freely pass through.

C. Sub-committee

Ultimately, it is difficult to view that the evidence submitted by the prosecutor alone proves that the facts charged in this case against the defendant are beyond a reasonable doubt. Nevertheless, the court below found the defendant guilty on the grounds as stated in its reasoning, which erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged against the defendant is as stated in Paragraph 2-A. As seen in Paragraph 3, since the facts charged constitute a case where there is no proof of facts constituting the crime, it is decided as per Disposition with the decision of not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act and the summary of the judgment in accordance with Article 58(2) of the Criminal Act.

Judges Masung-young (Presiding Judge)