2018No1258 Water Drieds

A

Both parties

Kim Jong-J (Court) and Kim Jong-Un (Court of Justice)

Law Firm Barn Law Firm

[Defendant-Appellee]

Seoul Central District Court Decision 2017Gohap1235 Decided April 27, 2018

July 11, 2019:

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

A) The term “water supply and other facilities”, which are the objects of the crime of water supply and drainage, should be deemed to be limited to “water supply pipes under the Water Supply and Waterworks Installation Act that supplies tap water to many people under the language and text thereof and the provisions of the Water Supply and Waterworks Installation Act. However, the term “water supply pipes” among the main complex buildings in Gangnam-gu Seoul Metropolitan Government (hereinafter “instant building”) where the Defendant installed valves, does not constitute “water supply pipes” under the Water Supply and Waterworks Installation Act, and does not constitute “water supply pipes” under the Water Supply and Waterworks Installation Act. Accordingly, the lower court’s judgment convicting the Defendant of the charges of this case, erred by misapprehending the legal doctrine as to the objects of water supply and drainage.

B) Whether the Defendant’s act constitutes “influence by destruction, damage, or other means” or “influence by the Defendant’s act” was inevitably set up a valve in the instant water pipe for the purpose of protecting the safety of the construction parts during the period of the instant remodeling work and the first floor remodeling work (hereinafter “the instant remodeling work”). Furthermore, the lower court’s judgment that recognized that the Defendant’s act constitutes the act of causing water to go through by destruction or other means of the instant water pipe was erroneous by misapprehending the legal doctrine or misapprehending the legal doctrine.

C) The occurrence of water leakage due to water leakage during the course of the instant remodeling project related to a political party’s act and caused imminent danger to the lives, bodies, etc. of workers. The Defendant proposed the floor pipe construction to prevent water leakage to residents, but the aforementioned residents refused to do so without any justifiable reason. Accordingly, the Defendant was forced to have E, a construction operator, install a valve in each of the instant water pipes and set it out. The Defendant’s act is a minimum act necessary to protect the lives, bodies, etc. of workers, and does not violate social rules.

Nonetheless, the judgment of the court below that the defendant's act did not constitute a justifiable act is erroneous by misapprehending the legal principles as to a justifiable act.

2) Unreasonable sentencing

The sentence of the court below (six months of imprisonment) is too unreasonable.

(b) An inspection;

The sentence of the court below is unfair because it is too unhued.

2. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

A. Whether the water management officer of this case constitutes the object of the crime of water supply prohibition

The lower court determined that the term “water supply and other facilities supplying public drinking water” under Article 195 of the Criminal Act is a water supply facility that actually supplies drinking water to the general public or to the general public, on the premise that such facilities are included in the public, regardless of whether it is a public or private facility, and that the water supply facility of this case is a water supply facility that supplies drinking water to the general 11 members of 4 households.

The purpose of the Water Supply and Waterworks Installation Act is to establish a comprehensive plan for the water supply and to install and manage the water in an appropriate and reasonable manner, and the Criminal Act differs from the purpose and the subject of the regulation under the Criminal Act. As such, the object of the water supply and drainage crime cannot be interpreted as limited to the water supply pipes under the Water Supply and Waterworks Installation Act, as alleged by the Defendant. Furthermore, in the case of water supply facilities that supply drinking water to all households residing in the building, such as each of the water pipes in this case, even if the number of households residing in the building is relatively small, it is reasonable to regard the "water supply and other facilities that supply public drinking water." This part of

B. Whether the defendant's act constitutes "influence to the public by causing harm to the public" or "influence to the public by causing harm to the public's health and sanitation by preventing the provision of drinking water to the public. Therefore, the "influence to the public by causing damage or any other means" under Article 195 of the Criminal Act includes not only destroying or cutting water pipes, but also blocking the provision of drinking water by using the water system itself, such as diving valves.

The lower court determined that the Defendant’s act of refusing to provide water several times by installing a valve at a place where it is difficult for the Defendant to easily discover the outside, and the Defendant’s act of refusing to provide water constitutes “a damage, etc.” under Article 195 of the Criminal Act, on the grounds of the circumstances stated in the 7th to 8th page of the lower judgment

Considering the circumstances stated by the court below and the point of view that the supply of tap water could not be arbitrarily resumed without using illegal means, such as intrusion upon the residents by installing the toilets of this case, which are installed after the wall of the toilets of this case under the possession of the defendant, and without permission, and that the defendant would resume the supply of tap water after the completion of the remodeling work of this case, "after the completion of the remodeling work of this case, the defendant will resume the supply of tap water." The defendant's crime of water non-use can be sufficiently recognized that the defendant continued to have been committed for a period of about one to nine months from about one year before the actual supply of tap water is resumed after the completion of the remodeling work of this case. Therefore, the judgment of the court below is reasonable, and there is no error of mistake of facts or misapprehension of legal principles as argued by the defendant.

The lower court determined that the Defendant’s act cannot be deemed a justifiable act on the grounds that the instant fractional measure is necessarily necessary for the process of the instant remodeling project, based on the reasoning stated in the 8th to 11th page of the lower judgment. However, considering the fact that the Defendant’s taking of the said fractional measure was to obtain property benefits from the remodeling project in essence, the Defendant would have been able to complete the floor pipeline construction works through legal procedures, etc., and that the Defendant would have been able to start remodeling construction works, and that the Defendant took a fractional measure on a 12-day basis after attaching the first written public notice, the lower court determined that the Defendant’s act cannot be deemed a justifiable act on the grounds that the conflict between the legal interests and interests

D. Sub-determination

The lower court’s determination that found the Defendant guilty of the instant facts charged is justifiable. The Defendant’s assertion that the lower court erred by misapprehending the legal doctrine as to the crime of water supply and water supply and the lawful act is not acceptable.

3. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

Due to the Defendant’s instant crime, H, G, and I had not been supplied with tap water for about one year and nine months. During the said period, the victims had to undergo serious inconvenience in living under circumstances where it is difficult to protect the basic health and hygiene. The instant crime is considerably poor in terms of the method and duration of the instant crime, and the suffering of victims. The Defendant did not fully compensate for the damage incurred due to the instant crime. Some victims want to be punished against the Defendant.

However, the Defendant, as a lessee of the first floor and second floor of the instant building, had a legitimate right to carry out the instant remodeling project, and was also making efforts to solve the problem by proposing residents, such as Fho Lake, to carry out water leakage prevention works at their own expense. The responsibility of the residents who refused water leakage prevention works seems to be certain parts in excessively long-term measures. The Defendant incurred economic damages, such as failure to properly carry out the leased project due to conflicts between the residents and building owners.

On the other hand, the Defendant opened the valves of this case immediately after the judgment of the court below was rendered. The present residents seem to be able to use normal water supply. The Defendant agreed to pay compensation for damage to the residents of this case, and the above residents expressed their intent not to be punished. In addition, the Defendant deposited KRW 5 million for the restoration of damage to the residents of this case. In addition, in consideration of all these circumstances, the Defendant’s age, character and environment, motive, means and consequence of the crime, and the conditions of sentencing specified in the records and arguments of this case, such as the Defendant’s age, character and conduct, environment, motive, means and consequence of the crime, the circumstances after the crime, etc., the lower court’s punishment seems to be excessive and unfair. The Defendant’s assertion pointing this out is with merit. The Prosecutor’s assertion contrary to this is without merit

4. Conclusion

Since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is judged as follows.

【Discriminary Judgment】 Summary of Criminal Facts and Evidence

The summary of the facts constituting an offense and the evidence acknowledged by this court is the same as the corresponding column of the judgment of the court below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act

Application of Statutes

1. Article applicable to criminal facts;

Article 195(1) of the Criminal Act

Articles 53 and 55 (1) 3 of the Criminal Act (The consideration of the preceding favorable circumstances)

1. Suspension of execution;

Article 62(1) of the Criminal Act (As mentioned above, repeated normal consideration)

1. The legal applicable range of sentencing

From six months to five years of imprisonment;

2. Non-application of the sentencing criteria (no sentencing criteria are set).

3. Determination of sentence;

The sentence shall be determined as per the text in consideration of the conditions of the sentencing as seen earlier.

The realization of the judge's judgment

Judge Roster

Judges Song Jae-Gyeong