2018Gohap269 Violation of the Cultural Heritage Protection Act, and damage to public goods

A

Kim Byung-Appellee (Public Prosecution), Red, and Spanishing (Public Trial)

Attorney B (Korean National Assembly)

April 24, 2018

A defendant shall be punished by imprisonment with prison labor for three years or more, and seizure subparagraph 1 shall be confiscated.

Criminal facts

【Criminal Records】

On June 29, 2017, the Defendant was sentenced to imprisonment for ten months and a fine of three hundred thousand won for the crime of attempted damage to public goods, etc. in the Goyang Branch of the District Court, and completed the execution of imprisonment in a governmental prison on January 7, 2018.

【Criminal Facts】

1. Violation of the Cultural Heritage Protection Act;

피고인은 의정부교도소에서 위 2017. 6. 29. 선고된 벌금형에 상응하는 노역을 하며 수용되어 있을 때 피고인의 형들이 피고인 때문에 자기들도 헤어져서 살고 있다고 피고인을 원망한 일 등으로 인하여 가족들에게 불만을 품고 있었고, 2018. 2. 15. 의정부교 도소에서 위 노역을 종료하고 출소한 뒤 일용직 노동 등에 종사하다가 2018. 3. 6.경 신당역 앞 도로에서 성명불상자가 운전하는 차량에 부딪히는 교통사고를 당하여 위 가해 차량의 보험회사 측으로부터 합의금으로 60만 원을 피고인의 계좌로 이체받기로 하였으나 3일이 지나도록 입금이 되지 않자 이에 대하여도 불만을 품고 있던 중, 대한민국 보물 제1호로 지정된 지정문화재인 '흥인지문(興仁之門)'에 불을 지르기로 마음먹었다. 이에 피고인은 2018. 3. 9. 01:40경 서울 종로구 종로 288에 있는 흥인지문에 인근 편의점에서 구입한 일회용 라이터와 길가에서 주운 종이상자를 소지한 채 접근하여 시정되어 있는 흥인지문 1층 출입문 틈 사이로 종이상자를 집어넣은 뒤, 돌벽을 타고 흥인지문 2층 성벽 위로 올라간 다음 계단을 이용하여 종이상자를 넣어 둔 1층 출입문으로 내려와 종이상자를 들고 다시 흥인지문 성벽 위로 올라갔다. 계속하여 피고인은 같은 날 01:50경 흥인지문 2층 누각의 담장 안쪽으로 위 종이상자를 던져 넣고 2층 누각 담장을 넘어 들어가서, 흥인지문 2층 누각 내부 벽면과 목조 기둥 사이 부분에 위 종이상자를 내려놓은 다음 소지하고 있던 일회용 라이터로 불을 붙여 흥인지문을 소훼하려 하였으나, 흥인지문에 침입하는 피고인의 모습을 발견한 시민의 신고로 출동한 종로구청 C과 소속 문화재관리인 D이 위 누각 안에 비치된 소화기를 이용하여 불을 끄고 서울혜화경찰서 소속 경찰관 E 등이 피고인을 현행범인으로 체포하여 미수에 그쳤다.

Accordingly, the Defendant did not obtain permission from the Administrator of the Cultural Heritage Administration, and attempted to commit a fire to the interest stamp, designated as cultural heritage No. 1, which is a cultural heritage item of the Republic of Korea.

2. Damage to public goods;

The defendant was issued a detention warrant at the Seoul Central District Court on March 10, 2018 due to the criminal facts described in paragraph (1), and around 08:20 on March 13, 2018, it was sent from the Seoul Special Beneficiary Police Station to the Seoul Central District Prosecutors' Office, and was admitted to the 8 unit of the police room in the separate jurisdiction of the above Prosecutor's Office.

From around 09:00 to 11:30 on March 13, 2018, the Defendant continued to walk the entrance door of the above 8 room on the two sides, and continued to walk the above 11:30 on the same day to walk the toilet door in the above 8 room from around 11:30 to 11:35, and walk the toilet door in the right side of the above 158, the Defendant opened the toilet door in the 8 room of the Seoul Central District Public Prosecutor’s Office, “I will die at the inside of the 8 room of the Seoul Central Public Prosecutor’s Office, I will die at the inside of the 158 room of the Seoul Central Public Prosecutor’s Office.” By doing so, the Defendant: (a) opened the toilet door connected to the 158 room of the Seocho-gu Seoul Central Public Prosecutor’s Office; and (b) destroyed it by completely separating the door door door from the 158 room; and (c) destroyed it by using the 0th of the above 10 screen.

Summary of Evidence

1. Partial statement of the defendant;

1. Some statements of the prosecutor's office and police interrogation protocol of the accused;

1. The police statement concerning G;

1. Each statement of D and H;

1. A report on investigation (in relation to the arrest status of the accused), a report on investigation (in relation to the arrest status of the accused), a report on investigation (in addition to a photo of CCTV images affixed to interest rooms No. 8), a report on investigation (in addition to a written estimate), a report on investigation (in addition to a written estimate), and a report on investigation (in relation to the designation as referred to in subparagraph

1. Records of seizure and the list of seizure;

1. Previous records: Criminal records and investigation reports (limited to previous records and repeated crimes, judgment related thereto, and current status of personal confinement);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 101 Subparag. 8 and 48(5) of the Cultural Heritage Protection Act (the occupation of entering designated cultural heritage, the choice of imprisonment), Article 94 Subparag. 1 of the Cultural Heritage Protection Act, Articles 165 and 174 of the Criminal Act (the occupation of attempted fire prevention of designated cultural heritage, the choice of limited imprisonment), Article 141(1) of the Criminal Act (the occupation of damage to public goods and the choice of imprisonment)

1. Aggravation for repeated crimes;

Article 35 of each Criminal Code (Provided, That the limitation of proviso of Article 42 of the Criminal Code shall apply to attempted crimes of violation of the Cultural Heritage Protection Act due to attempted crimes of arson designated cultural heritage)

1. Attempted mitigation;

Articles 25(2) and 55(1)3 of the Criminal Act (an attempted crime of violating the Cultural Heritage Protection Act due to an attempted crime of arson of designated cultural heritage)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment for concurrent crimes prescribed in a crime of violating the Cultural Heritage Protection Act due to an attempted crime of arsoning a designated cultural heritage with the largest sentence)

1. Confiscation;

Judgment on the assertion of the defendant and defense counsel under Article 48(1)1 of the Criminal Act

1. Summary of the assertion

On March 9, 2018, the defendant laid down an abnormal stringer between the inner wall of the second floor of Heungmun-gu and the wooden pole on March 9, 2018, and attached the abnormal stringer. However, this was merely intended to avoid drilling, and there was no intention to attach a fire planned in the Heungmun-gu.

2. Determination

A. Relevant legal principles

In a case where a criminal defendant denies his/her criminal intent, which is a subjective element of a constituent element of a crime, the criminal intent cannot be objectively proved, and therefore, it is inevitable to prove it by means of proving indirect or circumstantial facts related to the criminal intent in light of the nature of an object. In such a case, what constitutes an indirect or circumstantial fact ought to be determined by a reasonable method of determining the link of facts based on the sound observation or analysis based on normal empirical rule (see, e.g., Supreme Court Decisions 2016Do15470, Jan. 12, 2017; 2005Do8645, Feb. 23, 2006).

Unlike gross negligence, dolusent intention, unlike intentional negligence, ought to have an awareness of the possibility of occurrence of a crime, and furthermore, an internal intent to allow the risk of occurrence of a crime. In light of how to assess the possibility of occurrence of a crime in general if the offender is based on specific circumstances, such as the form of an act and the situation of an act performed outside, without depending on the statement of the offender, as to whether the offender was aware of the possibility of occurrence of the crime, the psychological state from the standpoint of the offender ought to be ratified (see, e.g., Supreme Court Decisions 2016Do15470, Jan. 12, 2017; 2004Do744, May 14, 2004).

B. Specific determination

According to the above legal principles, the defendant was lawfully admitted to the wall of this case. ① The defendant was directly holding the strawer purchased from the wall of public interest and the 2nd floor of public interest. ② The defendant laid the strawer on the wall of public interest and the 2nd floor of public interest, ② The defendant laid the strawer on the wall of public interest and attached strawer to the 2nd floor. ③ The time when the defendant entered the 2nd floor of public interest and private interest was around 01:48 on March 9, 2018, and the cultural heritage administrator used the 2nd floor of public interest and caused the death of the above strawer, and it was acknowledged that the defendant was still aware of the fact that the 2nd floor of public interest and private interest and private interest and caused the death of the above strawer at least 01:57 on the same day, and that the defendant could have been aware of the possibility that the 2nd floor of fire and private interest and the following circumstances can be seen to the maximum extent possible.

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years or more from March to June 37;

2. Scope of recommended sentences according to the sentencing criteria;

(a) Whether each sentencing criteria are not set due to attempted crimes of violating each Cultural Heritage Protection Act, etc.;

(b) Damage to public goods;

[Determination of Punishment] Types 1 (Invalidity of Public Goods) for the Nullity and Destruction of Public Goods in the Obstruction of Performance of Official Duties

[Special Convicts] Reductions: Where the value of invalid or destroyed articles is insignificant;

Aggravations: Cumulative Offense

[Recommendation and Scope of Recommendation] Reduction Area, Imprisonment with prison labor from one month to eight months: Imprisonment with prison labor for not less than one month (the crime of damage to public goods whose sentencing criteria are set and each crime of violation of the Protection of Cultural Properties Act for which no sentencing guidelines are set are set is related to concurrent crimes under the former part of Article 37 of the Criminal Act, so only the lowest limit of the recommended punishment in the sentencing criteria for the crime of damage to public goods shall apply).

(d) Scope of revised recommendations: Imprisonment with prison labor for not less than two years and not less than three months (compliance with the lower limit of punishment by law);

3. Determination of sentence: The three-year public stamp book is an important designated cultural heritage asset No. 1 in 1963, and the defendant who attempted to prevent a fire against this, is highly likely to commit a crime of attempted fire against the designated cultural heritage asset of this case in light of its danger, etc.

In addition, even before the instant case, the Defendant had been punished several times due to the instant crime, such as the instant crime of attempted fire-fighting, and damage to public goods. Nevertheless, the Defendant committed each of the instant crimes again after being released from prison and one month. Considering such circumstances, it is inevitable to punish the Defendant significantly.

However, the fire prevention attempt against the defendant's interest stamp shall be advanced by the cultural property administrator and attempted. The damage amount to the crime of damage to the public property of this case is relatively minor, the defendant reflects his mistake, and the defendant's age, growth process, family relationship, details and method of the crime, circumstances before and after the crime, etc. shall be determined as ordered by the order, taking into account various sentencing factors as shown in the arguments.

The presiding judge, the Kim Jong-dong

Judge Political decoration

Judge Lee Sang-hoon