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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. Although the Defendant, as stated in the facts of the crime in the judgment of the court below, has partially obstructed the road (hereinafter referred to as the “road in this case”), the above road is not a road that passes by the general public, and it cannot be deemed as the land stipulated in Article 185 of the Criminal Act. The Defendant’s act does not obstruct traffic since it does not make the passage impossible or considerably difficult, and the Defendant did not have any intention to obstruct traffic.
Nevertheless, the court below found the defendant guilty, which affected the conclusion of the judgment due to mistake of facts.
B. The sentence of the lower court (an amount of KRW 2,00,000) that is unfair in sentencing is too unreasonable.
2. Determination
A. The purpose of Article 185 of the Criminal Act regarding the assertion of mistake of facts is to punish all acts that make it impossible or considerably difficult to pass through by destroying or infusing land, road, etc. or interfering with traffic by other means, as a crime that legally protects the general public’s traffic safety.
In this context, the term "landway" refers to the land passage that is actually used for the traffic of the general public, and is not widely used for the ownership of the site, the relationship of the ownership of the site, the relationship of the right and the right of the traffic or the traffic of the traffic manager, etc.
In addition, the crime of interference with general traffic is an abstract dangerous crime where traffic is impossible or considerably difficult, and the result of traffic interference is not practically necessary (see, e.g., Supreme Court Decision 2004Do7545, Oct. 28, 2005). The following facts are acknowledged according to the evidence duly adopted and investigated by the court below.
The C Husband and wife, a N residents of the Jeonyang-gun, is coming to and coming from their home through the road of this case.
The defendant is a dry field that is cultivated by the residents of the village and the residents of the city on the inside of the road of this case.