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The prosecutor's appeal is dismissed.
Reasons
1. In order to be recognized as a de facto management or possession to be protected by the Defendant’s possession of the first room to the right side of the second floor of the building located in Jung-gu Seoul (hereinafter “instant building”) (hereinafter “the instant room”), the summary of the grounds for appeal (defluence of facts and misapprehension of legal principles) (hereinafter “the instant building”), the Defendant must initiate lawful residence or simple residence with the consent of the lessee or at least by delegation or consent from the lessee.
However, in light of the fact that the victim was living in F, not the defendant, at the time of acquiring the building of this case from C, the former owner of the building of this case, and that F moved out from the room of this case upon the victim's request for eviction, and that the lessee of the room of this case is not the defendant but D, it is difficult to view that the defendant has de facto management rights or possession rights over the room of this case, and it is reasonable to view that the victim acquired the above management rights or possession rights.
Nevertheless, the judgment of the court below which acquitted the charged facts of this case is erroneous in misconception of facts and misapprehension of legal principles.
2. Determination
A. The summary of the facts charged in this case is that the Defendant, who leased the first room to the right side of the second floor of the building located in Seoul Jung-gu, Seoul, with KRW 8 million and resided in D, and the victim E is a person who acquired ownership of the building on April 24, 2019.
The Defendant, even though from June 23, 2019 to June 28, 2019, received deposit KRW 8 million from the victim from the above room from the victim and agreed with the victim to order the above room to the victim, is unable to remove and move the glass windows, etc. on the first floor of the above building on several occasions, on the ground that the Defendant cannot move from the victim.
Although the Gu received the Gu, it did not comply with it without justifiable reasons.
B. The lower court determined that the crime of non-compliance with the eviction under Article 319(2) of the Criminal Act, or the building room, etc.