In the crime of destroying and damaging documents, the meaning of “harming the usefulness of documents” and, in a case where the existing utilization state formed by the owner’s intent makes it temporarily impossible to use documents according to the previous state, whether the crime of destroying and damaging documents is established (affirmative)

The crime of destroying and damaging documents is established by destroying or concealing documents owned by another person or by any other means to render them unusable, and the document’s usefulness is not only to make such documents unusable for its original purpose, but also to make them unusable temporarily. Accordingly, the crime of destroying and damaging documents may be established even in a case where a document posted at a certain place according to the owner’s intent is removed against the owner’s intent and makes it temporarily impossible for another person to use the documents in accordance with the previous state. However, the crime of destroying and damaging documents is established in a case where the owner of a document intends to protect the document from holding and using the document. As such, the crime of destroying and damaging documents is merely merely to remove or change the existing state of use in a case where the previous state of use in a document is made against the owner’s will or against the owner’s will, and it does not interfere with the use of the document, that is, the utility of the document, if it does not interfere with the owner’s temporary use of the document.

Article 366 of the Criminal Act

Supreme Court Decision 84Do2290 delivered on December 26, 1984 (Gong1985, 292) Supreme Court Decision 92Do1345 delivered on July 28, 1992 (Gong1992, 2702) Supreme Court Decision 93Do2701 Delivered on December 7, 1993 (Gong194, 402)

Defendant

Defendant

Attorneys Park Sang-sung et al.

Daejeon District Court Decision 2014No464 decided September 18, 2014

The conviction part of the judgment of the court below is reversed, and that part of the case is remanded to the Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. The crime of destroying and damaging documents is established by destroying or concealing the documents owned by another person or impairing the utility of such documents by other means. The crime of destroying and damaging documents is established not only in such a state where the documents cannot be provided for the original purpose of use, but also in a state where they cannot be used temporarily (see Supreme Court Decisions 84Do2290, Dec. 26, 1984; 93Do2701, Dec. 7, 1993). Therefore, the crime of destroying and damaging documents may be established even in a case where a document posted at a certain place according to the owner’s intent is removed against the owner’s intent and makes it temporarily impossible for another person to use the documents according to the previous state of use. However, since the crime of destroying and damaging documents intends to protect the owner of the documents while holding the documents, the crime of destroying and damaging documents merely cannot be established because it merely alters or conceals the existing state of use, and it does not interfere with the owner’s intent.

2. The summary of the facts charged in the instant case is that the Defendant, as the occupant of the instant apartment, arbitrarily removed one copy of the “written reply from the 2000 ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ hereinafter referred to as “non-Subrogation”) to oppose the construction of automatic waste collection facilities.” On August 1, 2012, the head of the instant apartment management office posted one copy of the “written reply from the 200 ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ Urban ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

As to the facts charged in this case, the lower court determined that the instant reply document would prejudice the effectiveness of the instant reply document by removing the instant documents from the wall surface without undergoing due process, as it did not own the individual ownership of the Defendant, but did not belong to the residents of the instant apartment that filed a civil petition against the construction of automatic waste collection facilities at ○○○○ city. Since the occupants of the instant apartment complex agree to the construction of the said facilities among the occupants of the instant apartment complex, the Defendant arbitrarily removed the instant reply document from the wall without undergoing due process.

3. However, it is difficult to accept the above determination by the lower court.

(1) This part of the facts charged does not mean that the defendant removed the instant reply document from the wall of the elevator and caused damage to its utility by destroying, concealing, etc. Accordingly, if the defendant intends to remove the instant reply document from the wall of the elevator and thus undermine its utility, posting the instant reply document on the wall of the elevator should be subject to the intention of the owner of the instant reply document. If the instant reply document was posted on the wall of the elevator against the owner's will or against the owner's will, then, if it was posted on the wall of the said elevator, the act of removing it cannot be deemed that the defendant harmed the utility of the instant reply document merely by the act of removing it.

(2) However, even upon examining all the evidence adopted and examined by the lower court and the first instance court, posting the instant reply document on the wall of the said elevator does not constitute an intention of the owner of the instant reply document.

Rather, according to the reasoning of the lower judgment, the instant reply document is owned by the occupants of the instant apartment complex, who filed a civil petition against the construction of automatic waste collection facilities at ○○○○○○○○○○○,. In addition, according to the records, the instant reply document was prepared and sent by the occupants of the instant apartment complex, including the Defendant and 452 (hereinafter “occupants”) as the response against the construction of the said facilities at ○○○○○○○, and Nonindicted 1, the head of the instant apartment management office, stated that “the instant reply document was posted on the wall of the instant elevator without the consent of the addresseess, including the Defendant,” and Nonindicted 2 and Nonindicted 3, who are the occupants of the Defendant and non-party 3, stated that the Defendant and non-party 452, who were the owners of the instant apartment complex, were not the owners of each wall of the instant apartment complex, and that there was no possibility for the occupants to take over the instant facility under the name of the chairman at the time of the said public announcement and its statement to the purport.

In addition, the occupant of the instant apartment, who is not the occupant of the instant apartment, is not the owner of the instant reply document, and there is no evidence to prove that the owner of the instant reply document passed a resolution to post the instant elevator wall on the wall of the said elevator. Thus, it cannot be said that the notice of the instant reply document on the wall of the said elevator is based on the owner’s intent on the ground that there is a resident who consented to the construction of the said facility among the occupants of the instant apartment

(3) As long as the Defendant is not recognized to have impaired the utility of the instant reply document, the crime of destroying and damaging documents is not established on the ground that the instant reply document was removed from the wall of the elevator without following the procedure necessary for the removal of notices, such as the consent by the managing body of the apartment of this case.

(4) Nevertheless, the lower court erred by misapprehending the legal doctrine on the crime of destroying and damaging documents, which affected the conclusion of the judgment, by misapprehending the legal doctrine on the crime of destroying and damaging documents, which determined that the Defendant removed the instant reply document from the elevator wall.

4. Therefore, the conviction part of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)