[1] The meaning of "act which does not violate social rules" under Article 20 of the Criminal Code, and the elements for establishing a legitimate act

[2] The case holding that an act of intrusioning upon the residence of the deceased does not constitute a justifiable act

[1] The "act which does not violate the social rules" under Article 20 of the Criminal Code refers to the act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it, and whether certain act is justified as a legitimate act that does not violate the social norms, and thus, it should be determined individually by considering the motive or purpose of the act, the reasonableness of the means or method of the act, the balance between the legal interests of the third protected interests and infringed interests, the fourth urgency, and the fifth supplementary nature that there is no other means or method than the act.

[2] The case holding that an act of intrusioning upon the residence of the deceased does not constitute a justifiable act

[1] Article 20 of the Criminal Act / [2] Articles 20 and 319 (1) of the Criminal Act

[1] Supreme Court Decision 86Do1764 delivered on October 28, 1986 (Gong1986, 3159), Supreme Court Decision 93Do2899 delivered on April 15, 1994 (Gong1994Ha, 1555), Supreme Court Decision 97Do2118 delivered on November 14, 1997 (Gong1997Ha, 3914), Supreme Court Decision 98Do3029 delivered on January 26, 199 (Gong1999Sang, 405), Supreme Court Decision 9Do4273 delivered on March 10, 200 (Gong200, 997) and Supreme Court Decision 2008Do320539 delivered on April 25, 200 (Gong2000, 20384, 205).

Defendant 1 and two others

Prosecutor

Changwon District Court Decision 2002No2543 delivered on May 13, 2003

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

1. Fact-finding and judgment of the court below

In light of the above facts, the court below accepted the defendant 1's non-indicted 1's witness's act on January 13, 202 and the defendant 2's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 1's husband's non-indicted 2's non-indicted 1's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 6's non-indicted 2's non-indicted 1's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 3's non-indicted 1's non-indicted 6's non-indicted 1's non-indicted witness's non-indicted's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 1's non-indicted 2's non-indicted 1'

2. The judgment of this Court

However, we cannot accept the judgment of the court below that the defendants' act of entering the housing of this case was a legitimate act.

"Acts which do not violate social rules" under Article 20 of the Criminal Act refers to acts which can be accepted in light of the overall spirit of legal order or the social ethics or social norms, and which act is legitimate in violation of social norms, and the illegality of which act is excluded should be determined individually by considering the following specific circumstances: (a) the legitimacy of the motive or purpose of the act; (b) the reasonableness of the means or method of the act; (c) the balance between the protected interests and the infringed interests; (iv) the urgency; and (v) the supplementary nature that there is no other means or method other than the act (see Supreme Court Decision 2002Do5077 delivered on December 26, 2002).

According to the records, Defendant 1 got married with Nonindicted Party 1 on around 1973. From around August 200, Nonindicted Party 1 opened a cell phone with Nonindicted Party 1, 200, she was doubtful of female relations with Nonindicted Party 1, and subsequently, she abused Nonindicted Party 1 on this issue and inflicted injury on Nonindicted Party 1. Accordingly, Nonindicted Party 1 filed a lawsuit for divorce and consolation money against Nonindicted Party 1 on the ground that he was responsible for the marriage, and Nonindicted Party 1 entered the instant house with Nonindicted Party 1’s house, which was separated from the victim’s husband, and the victim was able to separate the victim’s house from the Defendant 1’s house in the process of divorce with Nonindicted Party 1, the victim was able to file a lawsuit for divorce and consolation money, and Nonindicted Party 1 was able to separate the victim’s house from the Defendant 1’s husband, and the victim was able to file a lawsuit for divorce between Nonindicted Party 1 and the victim.

In full view of the facts established by the court below, under the presumption that the defendants and the non-indicted 1 were to make a confluence in the victim's room in the instant house, the defendants intruded into the instant house to directly witness and photograph his pictures for the purpose of collecting evidentiary materials to be used in the divorce lawsuit between the defendant 1 and the non-indicted 1, and such purpose cannot be a reason to justify the infringement of the rights of the victim's residential life, and even considering the circumstances revealed by the court below, it is difficult to see that the above act by the defendants is reasonable in the means and method, and it cannot be deemed that such act by the defendants was an urgent and inevitable means for the purpose of collecting evidence regarding the inter-confluence or incompetence relation between the non-indicted 1 and the victim.

Therefore, although the defendants' act of entering the housing in this case cannot be deemed a justifiable act under Article 20 of the Criminal Act, the court below deemed it as a justifiable act for the reasons stated in its reasoning and rendered a judgment not guilty. Thus, the judgment of the court below is erroneous in the misapprehension of legal principles as to a justifiable act under Article 20 of the Criminal Act, and it is obvious that such illegality has affected the conclusion of the judgment. Thus, the grounds of appeal pointing this out

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ji-dam (Presiding Justice)