2017Gohap1235 Water Drieds

A

Kim Jong-ho (prosecution), Red Government (Public Trial)

Law Firm Shin, Attorney Park Jae-sik, Counsel for defendant-appellant

April 27, 2018

A defendant shall be punished by imprisonment for six months.

Criminal facts

On May 19, 2016, the Defendant: C, the owner of the main complex building located in Gangnam-gu Seoul on May 19, 2016, and D, the general financial director of the company, which entered into a lease service contract, containing the following contents: “If the lessee does not withdraw despite the termination of the lease contract, the lessee shall be responsible and shall withdraw the lessee by means other than litigation, negotiation, etc.”

On July 12, 2016, the Defendant: (a) around July 12, 2016, ordered E, a construction business operator, who is aware of the circumstances, to install valves in the second water pipe that supplies tap water to the four households of Fho Lake, Gho Lake, Hho, and I; and (b) allowed E, a construction business operator, to stop using water to supply drinking water to the public by locking the valves.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness J, K, E, and L;

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

1. Each police statement of J. K and M;

1. The application of Acts and subordinate statutes, such as a written public notice (referring to the statement of investigation record No. 7), a written confirmation of fraction (referring to the date of investigation record No. 8), a lease service contract (referring to the date of investigation record No. 97), a written decision (referring to the date of investigation record No. 128), a written decision (referring to the current status of a primary complex building, No. 215 of investigation records), a criminal report (referring to the date of investigation record No. 370),

1. Article applicable to criminal facts;

Article 195(1) of the Criminal Act

Determination on the defendant's assertion and defense counsel's assertion under Articles 53 and 55 (1) 3 of the Criminal Act (the following circumstances considered as favorable among the reasons for sentencing)

1. Summary of the assertion

A. The crime of water supply under Article 195 of the Criminal Code is punishable for the act of "the water supply and other facilities that supply the water for drinking purposes" by means of damage or damage, and the act of "the water supply and other facilities that supply the water for drinking purposes" does not constitute two water pipes that supply the water for drinking purposes to the main complex building located in Gangnam-gu Seoul Metropolitan Government (hereinafter referred to as "the building of this case") (hereinafter referred to as "the building of this case" in common, and if divided, "the water pipelines of this case" in this case) does not constitute "the water supply and other facilities that supply the water for drinking purposes" in the crime of water supply.

B. In addition, ① the Defendant simply set up a valve in each of the water pipes of this case and ② the residents of this case, including the residents of this case, refused the construction of floor pipes to prevent water leakage from the ground floor and the first floor (hereinafter “the ground floor and the first floor of this case”) below the Defendant, and did not take any measures despite its own execution of floor pipeline construction and guidance to use tap water. ③ The above residents, even though they knew that tap water can be easily used from each of the water pipes of this case, requested the Defendant to use tap water or opened the above valve on their own. In light of the above, the Defendant’s act of installing the water pipe of this case to prevent water leakage in the lower floor of this case without any special reasons, and thus, it cannot be deemed that the Defendant’s act of removing water leakage from each of the above residents of this case without any special reasons, such as water leakage in the floor of this case. Meanwhile, in executing remodeling construction on the ground floor of this case and the first floor of this case, the Defendant’s act of removing water leakage from the above floor of this case, etc.

2. Determination

(a) Facts of recognition;

According to the above-mentioned evidence and evidence Nos. 2 through 10, 18 through 21, 23, 26, and 27, the following facts are acknowledged.

1) On May 19, 2016, D Co., Ltd. (hereinafter referred to as “D”) concluded a lease service contract (hereinafter referred to as “instant lease service contract”) which includes the following: (a) between the company operating a building management business, etc. and C, which is the owner of the instant building; (b) remodeling for the original lease of the instant building on May 19, 2016; and (c) the lessee is responsible if the lessee does not withdraw despite the termination of the lease contract despite the termination of the lease contract; and (d) the lessee moves out by means other than litigation or negotiations. The object of the instant lease contract includes four households subject to the instant fraction, i.e., commercial building 1 and studio 6, which include four households subject to the instant lease; and (d) as special terms and conditions at the time of the contract, D shall promptly retire the existing tenants; and (d) D shall be paid a certain fee at each time prior to and every month from the owner of the instant building (hereinafter referred to as “the instant building”).

2) As a general financial director of D, the Defendant planned to remodel and lease the instant branch floor and the first floor in accordance with the instant lease service contract and the instant lease contract, and requested a police officer during June 2016 to remodel and lease the said remodeling work (hereinafter “instant remodeling work”).

3) At the time, the instant ground floor and the first floor were in the state where water leakage was constantly caused by water leakage in the instant subparagraph F, etc. The Defendant and E proposed that the residents of the instant building, etc., including F, will free of charge, check the cause and location of water leakage on the instant ground floor and the first floor, and if necessary, order the residents of the instant building to stop water leakage. However, the residents in receipt of the proposal suggested that the Defendant would have been in dispute with C, including J, with the six residents of the instant building, by filing a building name lawsuit under the Seoul Central District Court Decision 2016No525042, which had been in dispute with C, to drive away their own judgment, and refused to do so.

4) In order to prevent water leakage on the rooftop of the instant building, E covered vinyl on the rooftop, and installed a lid lid in the ventilation hole by cutting a hole around the exchange apparatus with a studs. Furthermore, in order to prevent water leakage from the wall surface of the instant building, E newly implemented a studs of the wall studs to prevent water leakage on the wall of the instant building, however, the water leakage on the instant ground floor and the first floor of the instant building continued.

5) Around July 1, 2016, the Defendant attached a public notice stating that “A fractional shall be held for the entire building of the instant building from July 11, 2017 to the completion date of the instant remodeling project” to the place where the instant building was located, and attached the same public notice even around July 10, 2016, around July 13, 2016, and around August 2, 2016.

6) After that, on July 12, 2016, the Defendant had E install valves in each of the instant water pipelines subsequent to the walls of N and each of the toilets of the first floor of this case (hereinafter referred to as “the instant fractional measure”). Accordingly, the supply of tap water to the instant water (the supply of tap water to the instant water was suspended) where 2 persons, including the instant F subparagraph, K, and Q, reside in 5 persons, such as J, etc., and 3 persons, such as the instant H subparagraph, the instant subparagraph where 1 person resides, and 1 person P, reside.

7) The residents of the instant F and H requested that the Defendant use tap water several times, but the Defendant refused to use the water by providing that “the Defendant shall be held liable if water was leaked on the following floor while using the water,” or that “the Defendant may not supply tap water until preventing water leakage by installing a direct floor pipe.”

8) Meanwhile, on March 16, 2017, J applied for provisional measures against C, D, and Defendant for the suspension of the use of tap water of this case by Seoul Central District Court 2016Kahap630, and received a decision from the above court that “D shall not interfere with the use of the water supply system of this case by J with respect to the instant fractional measures of this case on the grounds that it is difficult to view it as reasonable to the extent permitted by social norms.” According to the above decision, the supply of tap water of this case F was resumed from July 2017, but, as regards the H, G, and heading of this case, the supply of tap water of this case has been suspended until now.

B. Specific determination

1) Whether each of the instant waterworks managers constitutes “water supply and other facilities supplying public drinking water” under Article 195 of the Criminal Act

In this regard, the "water supply and other facilities that supply public drinking water" under Article 195 of the Criminal Act refers to the water supply facilities that are actually supplying drinking water to unspecified persons or many people, so that it is not a case of public opinion, and as long as it is a water supply facility that provides drinking water to the general public, it shall not be limited to facilities with a size or structure to the extent that it may cause danger to the general public, such as the obstruction of the use of drinking water by the general public. As seen earlier, the water supply facilities through the water supply pipes of this case shall be composed of 5 residents of this case, 5 residents of this case, 3 residents of Hhoho, 1 residents of this case and 11 residents of this case, and so, each of the water supply stations of this case shall be deemed to fall under the "other facilities that supply drinking water" under Article 195 of the Criminal Act, and therefore, the defendant and defense counsel of this part of this case shall not be accepted.

2) Whether the locking act by installing a valve in each of the instant water pipes constitutes "a damage, damage, and other methods" under Article 195 of the Criminal Act

Examining the above facts, the following circumstances acknowledged by the evidence, i.e., it was difficult to find out the outside after the wall of each toilet of the Nho Lake and each lake of the first floor, ii) the Defendant interfered with its utility by having E install a valve in each lake of the instant water pipelines so that tap water can not be supplied at all. 3 Defendant was requested several times from the residents of the instant F and H to use tap water, but refused to resume the supply of tap water by directly installing floor pipe, and ④ it was difficult to find the location of each pipe of the instant water pipelines in which the valves was installed, and even if discovered, it was difficult to view the Defendant’s act of installing a valve of the instant water pipelines in the instant water pipelines in the instant case for a long period of time, and thus, it was considerably difficult to view that the Defendant’s act of installing a valve of the instant water pipelines in the instant case for at least 7 months and refusing to use the valve of the instant case for at least 16 months.

3) Whether the instant fractional measure constitutes a justifiable act that does not contravene social norms or not refers to an act that is acceptable in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Whether certain act is a legitimate act that does not violate social norms should be determined individually by considering the specific circumstances and by reasonably considering the motive or purpose of the act. Thus, in order to recognize such a justifiable act, the following requirements should be met: (a) legitimacy of the act; (b) the means or method of the act; (c) the reasonableness of the means or method of the act; (d) the balance between the benefit and the benefit of infringement; (e) the balance between the benefit of protection and the benefit of infringement; and (e) the supplementary nature of the act that does not have any other means or method than the act (see, e.g., Supreme Court Decision 2003Do3000, Sept. 26, 2003).

B) Examining the instant case in accordance with the aforementioned legal principles, the following circumstances acknowledged by the evidence revealed in addition to the above facts, i.e., (i) the Defendant was authorized to implement the instant remodelling construction on the ground floor and the first floor in accordance with the instant lease agreement and the instant lease agreement; (ii) the water leakage from each floor pipe, such as the instant No. F, has occurred on the lower floor, and not only the safe progress of the instant remodelling construction; (iii) the floor pipeline construction on the instant No. F, etc. was necessarily necessary for the entire safety of the instant building; and (iv) the Defendant and E proposed that the residents, such as the instant No. F, etc. will free of charge be obliged to implement the instant remodelling construction; (iii) the Defendant’s installation of the floor pipeline without charge to the residents of the instant No. F, etc.; (iv) the Defendant, upon receipt of the proposal, may think that the Defendant would drive his house with his intention to do so; and (v) the Defendant’s refusal to take the instant corrective measures, such as the installation of the water pipe before and after the instant case.

C) However, considering the fact that the single floor and the single floor of this case had been under their own control for at least 10 years since they had been under their own control, and there is no evidence to acknowledge that there was an increase in the possibility of fire accidents or fire after the conclusion of the lease service contract and the lease contract, if the defendant does not commence remodeling work until the residents obtain, it may take preventive measures against accidents or building fire by strengthening the supervision or fire-fighting system. C, the purpose of which the defendant's own measures of this case was to promptly complete remodeling works rather than to prevent generation accidents or fire of the residents and users, and thus, the defendant would have the right to receive fees from the residents for the rent of this case, which would have been infringing upon the right of the residents to receive for the economic interest of the rent of this case. The defendant, who had been under his own control before and after the commencement of the remodeling work, may have sufficiently discovered the need for remodeling work of this case, and if the construction work of this case would have been under his own control after the commencement of the work of this case.

The reason for sentencing was that it was necessary to remodel the building of this case, and that the damaged resident also refused the proposal of floor pipeline construction for preventing water leakage, and neglected the consultation or cooperation, even though the status of water leakage on the floor floor and the first floor of this case, and thereby caused the Defendant to commit the crime of this case, the circumstances favorable to the Defendant may be considered.

However, even though the defendant's crime of this case caused water supply for one year, H, G, and I for not less than one year, for not less than 1 year and 9 months, it has not been completely restored until now.

Although there is a separate person liable to bear the burden and the defendant does not bear the legal burden, it is difficult to punish the defendant for the defendant, considering only the favorable circumstances as seen earlier, in the situation where the inconvenience of the victims is continued due to the defendant's crime. This is because, in fact, to select the victims a civil remedy again, it is necessary to cope with the same inconvenience and additional expenses as the present time for a long time. This is a harsh result for the victims who filed the defendant while taking damage compensation. Rather, taking into account the fact that the defendant, who is responsible for resolving the illegal state by preventing illegal acts, has taken into account the fault that the defendant did not fulfill his/her responsibility, to judge an appropriate sentencing according to the sentencing conditions prescribed in Article 51 of the Criminal Act

However, the defendant is not bound by considering the fact that the defendant would be given an opportunity for the construction of floor pipes in appropriate consultation with the victims and that he could be punished for the future proceedings after the completion of the construction and necessary director's expenses, etc. after this judgment is presented to the victims.

The presiding judge, the Kim Jong-dong

Judge Political decoration

Judge Lee Sang-hoon