(영문) 대법원 2021.5.7. 선고 2019도13764 판결

1. Article 366 of the Criminal Act provides that "a person who damages or conceals, or otherwise impairs the utility of, a special media record, such as another's property, document, or electronic record, shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding seven million won." Here, the term "other method" means an act that impairs the utility of property, etc. by exercising tangible power corresponding to the destruction or concealment in light of the content of Article 366 of the Criminal Act and the principle of strict interpretation of penal provisions, etc. It refers to an act that actually or in appraisal makes it difficult to provide the property for its original purpose of use, and includes making it difficult to temporarily use or play a specific role (see, e.g., Supreme Court Decisions 2007Do2590, Jun. 28, 2007; 2016Do9219, Nov. 25, 2016).

Specifically, whether certain acts impair the utility of property should be determined in accordance with social norms by comprehensively taking into account all the circumstances, such as the original use and function of the property, the act committed in the property, the effect of the result on the original use and function of the property, the difficulty and resistance of users, the difficulty and difficulty of restitution to the original state, the cost incurred, the purpose and continuity of the act, and the situation at the time of the act (see Supreme Court Decision 2007Do2590, supra).

2. Examining the evidence duly adopted and examined by the first instance court and the lower court, the following facts are revealed.

(1) Around July 7, 2018, the victim parked the EMW vehicle (hereinafter referred to as “victim vehicle”) operated by the victim in the vacant lot near the Seongbuk Factory located in Seoul Special Metropolitan City, Nowon-gu (hereinafter referred to as “instant place”).

(2) On July 7, 2018, around 13:22, 2018, the Defendant discovered that a damaged vehicle is parked in the instant place in which he parks a search engine, and attached a reinforced concrete structure in front of the vehicle so that the victim could not move the said vehicle, and subsequently, an excavation searcher shuts even in order to prevent the vehicle from moving. The Defendant did not have his contact address in the damaged vehicle or digging machine at the time.

(3) On July 7, 2018, around 22:00, the victim went to the instant place to operate the damaged vehicle, and confirmed that the vehicle is in front and rear obstacles, and attempted to stop the damaged vehicle while driving the damaged vehicle without obstacles, but failed.

(4) On July 8, 2018, the victim reported 112 and tried to remove obstacles with two police officers dispatched, but failed. On July 8, 2018, the victim waived the vehicle operation and left the place of the instant case.

(5) On July 8, 2018, around 07:10 on July 8, 2018, the Defendant removed crackers that had been laid behind the victim’s vehicle at the instant location, and the victim was unable to operate the damaged vehicle for about 17:18 hours.

3. Examining the above facts in accordance with the legal principles as seen earlier, it is sufficient to view the Defendant’s act of setting up reinforced concrete structures, etc., which are difficult to remove in front and rear the damaged vehicle, even if the Defendant’s act did not cause physical damage or functional utility to the damaged vehicle itself, as long as it temporarily becomes impossible to use the damaged vehicle for its original purpose because it was impossible to operate the damaged vehicle due to the said structures set up by the Defendant, it is reasonable to view that the act constitutes a case where the original purpose of use of the vehicle is harmed.

For reasons indicated in its holding, the lower court is justifiable to have rendered a guilty verdict on the primary facts charged of this case, and the lower court did not err by misapprehending the legal doctrine on “where the utility of property is harmed by any other means” as alleged in the grounds of appeal.

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