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The judgment of the court below is reversed.
The defendant is not guilty. The summary of the judgment against the defendant shall be published.
Reasons
1. The summary of the grounds for appeal (legal scenarios) is that the Defendant, as the owner of P and Q of the commercial building (hereinafter “instant commercial building”) located in the Full-si E apartment complex in Jeonju City (hereinafter “instant apartment”) located in the commercial building (hereinafter “instant apartment”) and occupied Cand C, 275.8 square meters and B 89 square meters (hereinafter “instant land”) adjacent to the instant commercial building as the instant commercial building parking lot. D arbitrarily installed a hud, etc. for access control on the instant land on January 2, 2018, thereby getting off the Defendant’s possession, and the Defendant was removed from the said hud in order to recover his/her possession. Accordingly, the Defendant’s act constitutes a justifiable act under Article 20 of the Criminal Act and thus, the illegality is dismissed.
2. At around 09:30 on January 2, 2018, the Defendant: (a) destroyed the instant facts charged in order for the victim to have approximately KRW 345,00,00 of the repair cost, by cutting down two studs for controlling entry and exit of “E apartment autonomous management and operation council” owned by the victim D installed in the relevant area, on the ground that the passage in Yansan-gu B and C was obstructed by the victim D.
3. Determination
A. A person who de facto controls an object of the relevant legal doctrine has possessory right (Article 192 of the Civil Act). Since the possessor can defend or recover, with his own force, his possession against an act of improper deprivation or interference (Article 209 of the Civil Act). Thus, in a case where the act of defense by the possessor of the right of possession as to the act of deprivation of occupation or the act of de facto withdrawal constitutes self-help under the Civil Act, illegality shall be excluded as a justifiable act under Article 20 of the Criminal Act.
(see, e.g., Supreme Court Decision 2009Do8110, Nov. 24, 2011). Meanwhile, even if the possessor had no legitimate title to possess, it is reasonable to deem that the possessor can exercise the right to self-help as long as he/she actually controls the possession of the object.
In addition, Article 209, Paragraph 1 of the Civil Code is stipulated.