Defendant

Defendant

The e-ray;

Attorney Nam-ju et al.

Seoul Western District Court Decision 2005 High Court Decision 690 Decided July 27, 2005

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Legal principles

(1) The consent of the victim

When the victim violated the provisions of the lease agreement at the time of the instant lease agreement, the Defendant explicitly consented to take the measures for the short-term lease. Since the Defendant’s measures for the short-term lease of this case were lawfully taken in accordance with the provisions of the lease agreement that the victim prepared and agreed to be the content of the contract, it shall be deemed unlawful as it constitutes a case where the victim consented. Therefore, the lower court erred by misapprehending the legal doctrine on the consent of the victim.

(2) Political act

In light of various circumstances, such as the motive, purpose, means and method, the background leading up to the suspension of a power plant, and the fact that the victim would be subjected to the suspension of a power plant, etc., the suspension of a power plant in this case constitutes a legitimate act as stipulated in Article 20 of the Criminal Act, which is reasonable to the extent permissible by social norms. Therefore, the lower court erred by misapprehending the legal doctrine on a legitimate act.

(3) Mistake of law

In accordance with the Supreme Court precedents, the defendant considered that the management rules for aggregate buildings, which provide that Korean power takes a short-term measure in accordance with the terms and conditions of electricity supply, and that the management rules for aggregate buildings, which provide that measures such as a short-term system can be taken against a sectional owner’s violation of regulations, are not crimes. Therefore, the defendant’s mistake has justifiable grounds, and thus, the court below erred by misapprehending the legal principles on legal errors in the law, which found guilty, despite that such mistake cannot be punished as an error

B. Unreasonable sentencing

The sentence of the court below that sentenced a fine of one million won to the defendant in light of the motive for the crime, the victim was able to predict the instant short circuit measure, causing the defendant's act, the damage is minor, and the circumstances after the crime was immediately cancelled, etc. is excessively unreasonable.

2. Determination

(a) recognised facts;

According to the records, the defendant and the victim have renewed the lease contract every five years after they entered into the lease contract for the first time on December 12, 199, and the last lease contract period is until December 12, 2004. The defendant notified the victim of the increase in rent and management expenses until November 15, 2004 that he would request the victim to reply to the renewal of the lease contract. However, on December 2, 2004, the defendant requested the victim to leave the office for the renewal of the lease contract until December 12, 2004 at the same time as the victim did not express his intention. However, on December 13, 2004, the defendant did not request the victim to leave the office for the renewal of the lease contract until December 204, 204.

B. As to the misapprehension of legal principle

(1) The consent of the victim

According to the statement of the lease contract, it is recognized that there is a provision that the lessor may cancel the lease contract, take measures to cut off or cut off the lease property, and demand the lessee to express his/her intention when the lessee has committed an act in violation of each provision of the lease contract.

However, the consent of the victim should continue to exist until the time of infringement of legal interests, and can be withdrawn at any time before the act. In light of the facts acknowledged earlier, the consent of the victim is not deemed to have been given when the defendant takes the measures for cutting off of this case. Therefore, the judgment of the court below that the defendant's act is not an act with the consent of the victim, and the above assertion is without merit

(2) Political act

According to the facts acknowledged above, the defendant's measures for the short circuit of this case were unilaterally taken against the victim's will in a superior position as a lessor, and the defendant seems to have extremely difficult to take other lawful procedures in order to secure his/her right. Thus, the motive and purpose cannot be justified or the means or method cannot be deemed reasonable. Further, the defendant's interest and the victim's interest cannot be seen as a balance between the victim's interest and the profits infringed, and thus, it cannot be viewed as a justifiable act. Therefore, the court below'

(3) Mistake of law

All the short-term measures taken by the Korea Electricity pursuant to the terms and conditions of electricity supply or the short-term measures prescribed by the management rules of aggregate buildings as set forth in the precedents of the Supreme Court are taken in a substantial way within the reasonable scope of its legitimate purpose, and cannot be evaluated the same as the case of this case where the lessor unilaterally takes the short-term measures in the superior position. Therefore, it cannot be deemed that there is a justifiable reason to believe that the Defendant is not guilty of the instant short-term measures, and therefore, the aforementioned assertion is

B. As to the assertion of unfair sentencing

Considering the motive and background of the instant crime, the circumstances before and after the instant crime, degree of damage, and other various matters prescribed in Article 51 of the Criminal Act, which are conditions for sentencing, such as the Defendant’s age, character and conduct, environment, etc. as shown in the instant records and pleadings, even if considering the circumstances alleged by the Defendant, the sentence of the lower court cannot be deemed to be too unreasonable. Thus, there is no reason to deem

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Cho Jong-soo(Presiding Judge)