2014No2253 General traffic obstruction

Defendant

nan

nan

Daegu District Court Decision 2013DaMa256 decided June 17, 2014

April 2, 2015

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of this judgment shall be published.

1. Summary of grounds for appeal;

The farm road that the defendant damaged by the judgment of the court below is a road for the convenience of a specific person, not for a road that has been used by many and unspecified persons as a passage, and thus, cannot be seen as a "land road" subject to general traffic obstruction. Furthermore, the above farm road was an uncertain road from the original point to the point of view, and thus, it does not make the defendant's act of narrowing the width of the road impossible or considerably difficult.

Since the defendant's act of restoration of land owned by others without permission, it constitutes a legitimate act that does not violate social rules, and the defendant did not have any awareness that traffic was obstructed at the time of the instant case.

Nevertheless, the court below found guilty of the facts charged of this case. The court below erred by misunderstanding facts and affecting the conclusion of the judgment.

2. Summary of the facts charged in this case

On April 2013, 2013, the Defendant thought that the Kim○○○○○○○ ○○○○ 717-1 and ri 27-13 of a farm road (hereinafter referred to as “the farm road of this case”) located between orchard 27-13 and that the above farming road was extended to 230cm in width on May 2012, the above farming road was extended to 230cm, and the Defendant’s ownership located adjacent to the farm road exceeded the boundary prior to 717-1cm in width, and the above farming machine cannot carry with the farming machine, such as a light railing, etc. with a maximum width of 90cm and 150cm in width, and cut off to the upper road of 51m in length. Accordingly, the Defendant, which is the above farming machine, was unable to carry with the traffic of the farming machine.

3. Determination

A. The judgment of the court below

In regard to this, the court below found the defendant guilty on the ground that the farming road in this case constitutes "land which is the object of interference with general traffic," and that the defendant's act constitutes "land which is the object of interference with general traffic," and it is difficult to see that the defendant's act constitutes a legitimate act or self-help act, even before the wide width of the farming road in this case, he stated at an investigative agency that he had been able to move on the above farming road even before the wide width of the farming road in this case. Since Kim ○○ purchased the above land for a long time after he purchased ○○○○ ○○○ - 27-3 land, he cut off the above land to the farming road in this case, and it is difficult to see that the above farming road in this case lost its function as a passage."

B. Judgment of the court below

1) Since the general traffic obstruction under Article 185 of the Criminal Act is a crime that is protected by the legal interest and protection of the traffic safety of the general public, "land" refers to a place where the general public enters and departs, a place where the general public enters and departs, and a place where many and unspecified persons or horses are able to freely pass through without any specific person (see, e.g., Supreme Court Decision 2003Do3173, Sept. 5, 2003). We examine as to whether the farming road of this case constitutes "land" under Article 185 of the Criminal Act. (2) According to the evidence duly examined and adopted by the court below and the court below, the following facts are recognized. (a) ○○○○○○ 27-13 land owned by Kim ○○-si, ○○○○○ 27-13 land is not adjacent to the public road, and ○○ 27-3 land adjoining to the same road by stating only the land number of Defendant 17 and 17.

나 ) 이 사건 농로는 약 20년 전 산27 - 13 토지의 이전 소유자인 김■■과 717 - 1토지의 이전 소유자인 여○○가 위 토지들에 농사를 짓기 위해 서로 합의하여 경운기가 다닐 수 있을 정도의 넓이로 개설한 것으로 당시 농로를 개설한 김■■과 여○○만이 이 사건 농로를 이용하였다 ( 증거기록 제135쪽 ) .

C) There were no other houses, buildings, etc. around and at the end of the instant farm road, and for 7 to 8 years in which Kim○-○ did not establish a farmer’s house, the extent that it is difficult to distinguish forest and farming roads from forest and farming roads due to the miscellaneous fishing village for 7 to 8 years (No. 82 pages, 83, 112, 113 of the trial record, and evidence No. 106 pages, 107 of the trial record).

D) Around May 2012, Kim ○○ expanded the instant farm road to the extent that the vehicle can pass with 230cm wide, and even thereafter, the instant farm road was used for the purpose of farming, a farming house and a tomb (as of 88, 114 pages) by Kim○ and Y○○ for the purpose of farming, a farming house and a tomb (as of 114 pages). According to the above recognition, the instant farm road is merely a place established as a passage by using adjacent land - No. 27-13 land, a neighboring land, 717-1 land for the farming house and 717-1 land, and it is difficult to view it as a place for free communication of the general public, that is, a place for an unspecified number of persons, a vehicle, and a horse.

Therefore, it is difficult to believe that the farmland of this case was a public place where many and unspecified persons, vehicles, and horses freely pass through. Even if the farmland of this case was used by the owner of the land adjacent to the farmland of this case, it shall be deemed that the owner of the farmland of this case is an individual use for the farmland of this case for the farmland of this case and the passage of neighboring residents. Furthermore, the "land" subject to general traffic obstruction is not a site ownership relation, traffic relation, or traffic relation, or a large number of pedestrians and horses, but it is premised on the public place where many and unspecified persons or vehicles and horses freely pass through, and it is merely an incidental place to the neighboring people while using the farmland of this case. Thus, the legal principle of this case does not apply to the farmland of this case.

Therefore, although the facts charged in this case constitute a case where there is no proof of crime and should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, the court below found the defendant guilty differently, and there is an error of law affecting the conclusion of the judgment.

4. Conclusion

Therefore, since the appeal by the defendant 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 in this case is as stated in Paragraph (2) above. This constitutes a case where there is no proof of crime as seen in Paragraph (3) above, and thus, a not-guilty verdict is rendered in accordance with the latter part of Article 325 of the Criminal Procedure Act, and the summary of this judgment is announced in accordance with Article 58(2) of the Criminal

Judges Kim Jong-sung 1

Judges Lee Jae-hoon

Judges Park Jong-young