The meaning of “harming the utility of a thing” among the elements of the crime of causing property damage, and whether it also includes making a thing in a state in which the property cannot be used temporarily (affirmative)

Article 366 of the Criminal Act

[Plaintiff-Appellant] 2007Do2590 decided Jun. 28, 2007 (Gong2007Ha, 1217)

Defendant

Defendant

Eastern Law Firm, Attorney Lee Jong-Un

Seoul Western District Court Decision 2016No1658 decided June 15, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the violation of the Punishment of Violences, etc. Act (joint property destruction and damage)

The crime of destroying and damaging property under Article 366 of the Criminal Act is established when the property of another person is damaged or concealed, or where the utility thereof is harmed by other means. The term “conscising the utility of property” refers to making the property in a state in which it is practically impossible to provide it for its original purpose of use, and includes making the property in a state in which it cannot be temporarily used. Whether the act of cutting and cutting away from the outside of a structure constitutes an act of undermining the utility of the structure, shall be determined in accordance with social norms, comprehensively taking into account all the circumstances such as the use and function of the structure, the degree of undermining the impact and aesthetic view on the structure, the degree of undermining the structure’s use and function, the degree of undermining the structure’s influence and aesthetic view, the difficulty and cost of restoration to the original state, the purpose and continuity of the act, and the situation at the time of the act (see Supreme Court Decision 2007Do

The court below reversed the judgment of the court of first instance that acquitted the Defendant on the ground that the Defendant’s wall of this case was built for the purpose of fine view as well as preventing the construction site noise, and that the Defendant did not prove the violation of the Punishment of Violences, etc. Act (joint destruction and damage, etc.) among the charges of this case, on the ground that it did not constitute a crime of violation of the Punishment of Violences, etc. Act (joint destruction and damage, etc.) among the charges of this case, on the ground that the Defendant’s wall was a single-fluort, and that it did not permit the act of cutting the picture during the time when the victim was unable to manage, and that it was not permitted. The Defendant restored the picture to a certain extent or replaced part of the wall to a certain extent in the process. The Defendant committed the crime of this case on the ground that there was no proof of the crime of violation of the Punishment of Violences, etc. Act (joint destruction and damage, etc.).

In light of the aforementioned legal principles and evidence, the lower court did not err by misapprehending the legal doctrine as to an act of harming utility in the crime of violating the law of logic and experience or of violating the Punishment of Violences, etc. Act, or by failing to exhaust all necessary deliberations as alleged in the grounds of appeal, or by misapprehending the legal doctrine as to an intentional act, joint principal offender, political party act or act that does not go against the social norms, or by exceeding the bounds of the freedom of arts and expression under the Constitution or by omitting judgment.

2. As to the ground of appeal on general traffic obstruction

According to the records, only the prosecutor of the court of first instance appealed the acquittal portion of the court of first instance, along with the unfair sentencing decision, and the defendant did not appeal the conviction of the court of first instance as to the general traffic obstruction among the facts charged in this case.

In such a case, with respect to the remaining convictions of the court below except for the part on which the court below accepted a part of the prosecutor's appeal and rendered a conviction, the defendant may not be considered as the grounds for appeal on the grounds of new reasons such as violation of the rules of evidence, mistake of facts, misunderstanding of legal principles, etc. Therefore, the remaining convictions of the court below except for those of violation of the Punishment of Violences, etc. Act (joint property damage, etc.) which

Furthermore, even upon examining the relevant legal principles and evidence, the lower judgment convicting the Defendant of interference with general traffic among the facts charged in the instant case, without failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, did not err by misapprehending the facts contrary to logical and empirical rules, by misapprehending the legal doctrine regarding the establishment of interference with general traffic and joint principal offense, or by exceeding the bounds of the freedom of assembly

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 Park Jung-hwa (Presiding Justice)