[1] The meaning of "land-way" under Article 185 of the Criminal Code

[2] The case holding that a passage without any people other than two households constitutes land as provided by the general traffic obstruction

[3] The case holding that it is difficult to view that the act of excavating the 100-meter width of the road from the road to the extent of 2m wide as a sckele and piling up stone to the extent of 100m wide as a legitimate act or self-defense in light of all circumstances such as the current status of the road and the time of establishment and use

[1] Article 185 of the Criminal Act / [2] Article 185 of the Criminal Act / [3] Articles 20, 21, and 185 of the Criminal Act

[1] Supreme Court Decision 88Do18 delivered on April 25, 198 (Gong1988, 929) Supreme Court Decision 2001Do6903 Delivered on April 26, 2002 (Gong2002Sang, 1310) Supreme Court Decision 2004Do7545 Delivered on October 28, 2005

Defendant

Defendant

Attorney Park Jong-han

Chuncheon District Court Decision 2006No544 Decided November 17, 2006

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the violation of the rules of evidence and the misapprehension of legal principle

A. Examining the evidence admitted by the court below in comparison with the records, it is just that the land on the 288th place at which Nonindicted Party 1’s house was located is a narrow dyke, and thus, it is impossible to pass through the light-line for the light-line, and the land on the above 289-7, 289-2, and 289-3 is a dry field and dry field, and there is no way to pass a dry field. Thus, it is evident that the court below did not have a passage from the house or dry field of Nonindicted Party 1 and Nonindicted Party 2 to the contribution from the dry field except for the passage of this case, and there is no violation of the rules of evidence as alleged in the grounds for

B. The crime of interference with general traffic under Article 185 of the Criminal Act is an offense in which the legal interest of the safety of traffic in the general public is protecting the safety of traffic in the general public. The term "land passage" refers to the wide passage of land that is actually being used for traffic in the general public. It does not go through the ownership of the site, the relationship of traffic rights, or the large and hostileness of traffic users (see, e.g., Supreme Court Decisions 88Do18, Apr. 25, 198; 2001Do6903, Apr. 26, 2002).

In full view of the evidence in its holding, the court below acknowledged the following facts: (a) the instant road was located in the Gangwon-gun, which was inherited by the Defendant, leading to the dry field (number 1 omitted), (number 2 omitted), (number 3 omitted), and (number 4 omitted) dry field; (b) the instant land was set up within the dry field (number 5 omitted); (c) the site of the same Ri (number 6 omitted); (d) the site of the same Ri (number 7 omitted); and (f) the site of the same Dong (number 8 omitted), which was located in the dry field (number 8 omitted) around July 1995; and (f) Non-Indicted 1 purchased the above (number 5 omitted); (c) resided in the dry field (number 6 omitted); and (d) cultivated the above (number 6 omitted); and (e) resided in the dry field (number 7 omitted); and (e) purchased the instant land to the extent that Non-Indicted 1 had not passed through the dry field as at the time of the instant land, as at that time the instant land was owned by Non-Indicted 2.

If the facts are as above, the passage of this case is practically common to the traffic of the general public, and it constitutes the land stipulated by the obstruction of general traffic, and it does not change even if there is no other person using the above passage except for the non-indicted 1 and non-indicted 22 households.

The judgment of the court below to the same purport is just and it is not erroneous in the misapprehension of legal principles as to land access in general traffic obstruction. The appeal to this effect cannot be accepted.

2. As to the omission of judgment

According to the records, even though the passage of the case constitutes "land access", the defendant's act was explicitly asserted that it constitutes self-defense and legitimate act (the summary of pleading at the court of first instance as of June 29, 2006 (the 99 pages) and the summary of pleading at the court below as of November 9, 2006 (the 148 pages at the court below). Such assertion constitutes "a statement stating the fact that the establishment of crime is dismissed under the law" as provided by Article 323 (2) of the Criminal Procedure Act, and thus, the court below should have clearly stated its decision.

However, “an act which does not contravene social norms” under Article 20 of the Criminal Act refers to an act which can be accepted in light of the overall spirit of legal order or social ethics or social norms. To recognize a certain act as a justifiable act, the act must meet the requirements such as legitimacy of the motive or purpose, reasonableness of the means or method of the act, protected legal interests, balance between the infringed legal interests and the infringed legal interests, urgency, and supplementary nature that there is no other means or method except the act (see Supreme Court Decisions 2003Do4732, Aug. 20, 2004; 2004Do8530, Feb. 25, 2005). To recognize a certain act as a legitimate act as a legitimate act, it must be reasonable to defend the present unfair infringement of one’s own or another’s legal interests, and therefore, it is difficult to recognize a legitimate self-defense as a legitimate act, and in light of the following circumstances, it is difficult to determine the extent of infringement by the defendant’s act of 10th degree and 20th degree of passage.

In conclusion, the omission of judgment by the court below did not affect the conclusion of the judgment, and thus, the argument of the appeal disputing this cannot be accepted.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)