[1] The meaning of "the possession of another person" under Article 323 of the Criminal Code that interferes with the exercise of rights

[2] The case holding that the possession by the possessor without any legal legitimate source of right is a possession protected by the crime of obstruction of right under Article 323 of the Criminal Code

[1] The provision of Article 323 of the Criminal Code intends to protect the de facto possession of property. It is reasonable to view that the de facto state of possession, regardless of whether the possessor has a legitimate source of right, is a provision to protect the de facto possession as an independent legal interest and punish the infringement by an unlawful means. Thus, as long as the “the possession of another person” under Article 323 of the Criminal Code is not clearly illegal, such as the possession against the owner of the larceny, and as long as the “the possession of another person” is a peaceful possession, not clearly illegal, such as the possession against the owner of the larceny,

[2] The case reversing the judgment of the court below which acquitted the successful bidder even though it constitutes a crime of interference with the exercise of rights under Article 323 of the Criminal Code, since the successful bidder's possession of the above building was acquired in a situation of de facto possession, even though it was judged that the right to collateral security, which served as the basis for the voluntary auction, was extinguished after the commencement of the auction procedure, was found to have been illegal, and thus the successful bidder failed to acquire ownership due to the determination that the auction decision was unlawful

[1] Article 323 of the Criminal Act / [2] Article 323 of the Criminal Act

Defendant

Prosecutor

Dominants

Attorney Park Shin-chul

Daejeon District Court Decision 2003Da447 delivered on May 16, 2003

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant does not pay the above fine, the defendant shall be confined in the old house for a period of 50,000 won converted into one day.

1. Summary of grounds for appeal;

In the order of the victim's seat, the building located in the Jung-dong 21-13, Jung-gu, Daejeon, Daejeon, was awarded a successful bid in the procedure of voluntary auction and the possession was commenced in full, but only the above decision to commence the auction was rendered illegal, and thus the ownership could not be acquired. Therefore, even if the possession of the above building was included in the possession protected by Article 323 of the Criminal Act, the court below found the defendant not guilty on the ground that the above possession of the above Dotin-dong was not the "other person's possession" protected by Article 323 of the Criminal Act. Thus, the court below erred in the misapprehension of legal principles as to the obstruction of the exercise of rights under Article 323 of the Criminal Act, or by misapprehending

2. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

On December 30, 201, the defendant cut off the locks set up in the order of the victim's seat from among the third floor buildings owned by the defendant on the ground of 21-13, Jung-gu, Daejeon Special Metropolitan City on December 30, 2001 to cut off the locks set up in the order of the victim's seat, installed at his own discretion, and prevented the defendant from exercising his right in the order of the party's possession by moving the above store under the possession of the river seat to the possession of the defendant, and ② around September 26, 2002, cutting the locks set up in the order of the first floor of the above building and cutting it by cutting the locks set up in the order of the party's seat in the order of the party's possession.

B. The judgment of the court below

In light of the above legal principles, the court below held that the crime of obstruction of another's exercise of rights under Article 323 of the Criminal Act is established when one another's possession of the above-mentioned building or another's exercise of rights by concealing or destroying the above-mentioned one's own property. "the possession of another's property" under the above provision means the possession by the title, i.e., the possessor of the right to possess the property, and even if there were objective circumstances to believe that the possessor did not own possession rights under the above provision, it should not be deemed that some of the defendant's legal statements, partial statement of the police's statement on the order of rainfall, the register of real estate register, and the ownership of the above 19-13-6-6-6-6-6-6-6-6-6-6-6-7-7-77-77-777-77777-777 (hereinafter referred to as "the land of this case"), and thus, it should be deemed that the existing 1-9-13-6-6-6-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-4

3. Judgment of the appellate court

A. The meaning of "the possession of another person" under Article 323 of the Criminal Code that interferes with the exercise of rights

Article 323 of the Criminal Code intends to protect de facto possession of property. It is reasonable to deem that the de facto state of possession, regardless of whether there is a legitimate source of possessory right, is a provision that protects the de facto state of possession, which is the de facto possession, as an independent legal interest, and punishs infringement by unlawful means. As long as the “the possession of another person” under Article 323 of the Criminal Code is not clearly illegal, such as the possession against the owner of larceny, so long as the “the possession of another person” is not clearly illegal, it shall be deemed that the de facto possession, which does not require the existence

B. Whether the possession in the order of this case is the possession protected by Article 323 of the Criminal Code

According to the records, as acknowledged in the judgment of the court below, it can be recognized that, notwithstanding the provisions of the Criminal Act, the Chungcheong Treasury leased the "glorries" of the first floor among the existing buildings of this case and the existing buildings on the ground thereof to a third party and voluntarily decided to commence auction on March 11, 1998. On March 11, 1998, Daejeon District Court Decision 98Hu11208, the order of auction was successful and the bid price was paid in full on March 8, 1999. On March 9, 199, the ownership transfer registration was made in the name of the river on March 3, 199. The order of the court below's order of rainfall constitutes a violation of the provisions of the Criminal Act's law's law's order of possession, it can be acknowledged that the court below's reasoning is that the defendant's order of the above 3th floor's order of possession of the 1st floor and the above 3th floor shopping in the order of the court's reasoning.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following judgment is rendered after pleading.

Criminal facts

The Defendant is the actual owner of a building of 432.19 square meters on the 3rd floor above Jung-dong 21-13, Jung-gu, Jung-gu.

On October 1, 1992, the right to collateral security was established with respect to the second-story building which was originally located on the ground of 21-13, 1992, and 450,000,000 won was loaned from the Chungcheong Mutual Savings and Finance Company, but around November 15, 1993, the above third-story building was destroyed on the site and the above third-story cement building was constructed on the site, and the above loan was not repaid to the Chungcheong Mutual Savings and Finance Company, and the injured party did not pay the above third-story cement building on February 1, 1999. The third-story cement building on March 9, 199 at the auction procedure applied for 331,00,000,000 won, and the third-story apartment building on March 9, 1999 was not registered for ownership transfer, and the third-story apartment building was not registered for ownership transfer to the victim on March 9, 199, and the third-story apartment building was again concluded with the victim on 14 second-story.

A. On December 30, 2001, the three-story buildings owned by the Defendant on the ground of 21-13, Jung-gu, Daejeon, Daejeon, which cut the locks set up in the order of the victim's seat to cut off and cut off the locks in the order of the victim's seat from among the three-story buildings owned by the Defendant on the ground of 21-13, Jung-gu, Daejeon, Daejeon, and obstructed the Defendant from exercising his right in the order of the party's seat by moving the above store under the possession of the party's seat to the possession of the Defendant and moving it to the party'

B. On September 26, 2002, at the same time, the said store was moved to the possession of the Defendant and obstructed the exercise of the right in the strong order by cutting the locks set up in the strong order on the first floor of the building, and opening all the floor board, electric facilities, etc. installed in the said place, and allowing the philosophical hall to operate the philosophical hall.

Summary of Evidence

1. Some statements that conform to the facts stated in the original judgment by the defendant;

1. Statement consistent with the facts stated in the original judgment in the order of the witness stand;

1. Making each statement corresponding to the facts contained in the judgment in each suspect examination protocol concerning the accused and the best example of preparation of judicial police officers' clerical work;

1. Each statement that conforms to the facts indicated in the judgment among the lecture records in the preparation of a judicial police assistant and each statement of his/her gambling file;

1. Each copy of the register and each copy of the judgment;

Application of Statutes

1. Article applicable to criminal facts;

Article 323 (Selection of Fine for Negligence)

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Punishment for Obstruction of Exercise of Rights under the former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravated Punishment as to Obstruction of Exercise of Rights under paragraph (b) above)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

It is so decided as per Disposition for the above reasons.

Judges Han Sang-chul (Presiding Judge)