2019 Highest 483 Property damage and damage

A

Court-appointed (prosecution), and the port of Ansan (public trial)

Attorney Hong Jin-jin (Korean)

20.3.24

Defendant is not guilty.

1. Summary of the facts charged in this case

The defendant was awarded a successful bid for five lots of land and studio buildings in the construction process, such as Jeonbuk-gun, Jeonbuk-gun, but the victim C ( South, 47) failed to receive the construction cost from the former owner, thereby installing flas cards and CCTV and exercising the right of retention.

At around 10:00 on February 2, 2019, Defendant: (a) requested a person who was aware of the name of the Defendant at the above construction site; and (b) required the removal of 40,000 won (per KRW 140,00) and one CCTV (per KRW 470,000) stated in the statement that “The building is in the exercise of the right of retention; and (c) damaged the market price owned by the said victim.”

2. Defendant’s assertion

Defendant acquired ownership of the instant building, etc. by fully paying the sale price on December 2, 2018, upon receiving the decision to permit the sale of the studio building (hereinafter “instant building”) recorded in the facts of prosecution regarding the instant court D case (hereinafter “auction case”). However, when Defendant visited the instant building after the construction, there was no 4 plug card and one CCTV (hereinafter “the instant plug, etc.”) recorded in the facts of prosecution. The Defendant discovered the instant plox card, etc. was the date of discovery, and the Defendant removed the instant pl cards, etc. in a lawful manner to prevent the Defendant from exercising the Defendant’s right to ownership against the instant building.On the other hand, the Defendant cannot be said to have possessed the right to attract the instant building.

In the end, the defendant's act does not constitute the element of the crime of causing property damage, or the illegality is excluded as it falls under the act of words or political parties.

3. Determination as to the assertion that the crime of destroying property does not constitute the elements of the crime

A. Relevant legal principles

The crime of destroying property is established when a special media record, such as another person’s property, document, or electronic record, is destroyed, concealed, or otherwise made available for its use (Article 366 of the Criminal Act). In the event that such special media record is damaged, concealed, or made available for any other means, it includes not only cases where the material destruction is made in a state that cannot be used for the original purpose of B, such as goods, but also cases where the utility is reduced temporarily by temporarily making it impossible to perform a specific role such as goods (see, e.g., Supreme Court Decision 2016Do9219, Nov. 25, 2016).

B. Determination

In view of the fact that Defendant’s removal of the instant plastic cards, etc., such as the Defendant’s entry in the facts charged, is clearly acknowledged by the evidence that was adopted and investigated by this court’s transfer of law, and the Defendant also recognized. In addition, considering the general function and function of CCTV called “ surrounding surveillance,” and the victim’s purpose of installation of the instant instant plastic cards, etc. (the means of the victim’s possession and publication, the surrounding surveillance), and the place of installation, etc., it is reasonable to view that Defendant’s removal of the instant plastic cards, etc., such as the instant plastic cards, etc., was made in a situation in which it is impossible to play a specific role, such as the instant plastic cards.

Therefore, Defendant’s act constitutes the elements of the crime of causing property damage.

4. Determination on the assertion that illegality is excluded

The defendant's legitimate behavior is examined first.

A. “Act which does not contravene social norms” as prescribed by Article 20 of the Criminal Act refers to an act permissible in light of the overall legal order or social ethics or social norms. As such, a certain act constitutes a justifiable act where the owner of real estate satisfies the requirements, such as the motive or justification of the act, the reasonableness of the means or method of the act, the balance between the benefits of protection and infringement interests, urgency, and supplementary nature that there is no other means or method other than the act (see, e.g., Supreme Court Decision 2015Do16496, Jan. 28, 2016). Even if a person who is lawfully delivered the said act was installed without his/her consent or permission and immediately removed or removed it, such act may be deemed to have caused considerable damage to the entry or lease of real estate in light of social norms (see, e.g., Supreme Court Decision 2015Do16496, Jan. 28, 2016).

B. Specific determination

In accordance with the records of this case, the following circumstances are recognized. Examining this in light of the relevant legal principles of Paragraph (a) above, the Defendant’s removal of the instant pl cards, etc. constitutes a justifiable act.

① The Defendant acquired the ownership of the instant building, etc. by fully paying the proceeds from sale on December 26, 2018, with respect to the auction case as to the instant building, etc. as the owner of the instant building. However, the victim did not report the lien on the instant building. On February 20, 2018, the former local court enforcement officer investigated the current status of the instant building, etc. on the auction case. The photographs of the instant building do not exist, such as the instant pl cards, etc., and did not separately state that there was the possessor of the instant building. The current status survey does not indicate that the victim was the owner of the instant building, even after the date of installation of the instant pl cards, etc. (the evidence No. 4 of the Prosecutor submitted by the Prosecutor), even if the victim stated at the police immediately after the instant case (the date of installation of the instant pl cards, etc.) and that the victim cannot be seen as the acquisition of the Defendant’s right to use the instant building, regardless of whether the Defendant’s right to use the instant building was an unlawful.

② Defendant asserts that the existence of this case’s instant registration card was a situation in which the exercise of ownership on the instant building was impossible due to the existence thereof. This assertion is sufficiently acceptable in view of the empirical rule and social norms. (3) The specific method of impairing the utility of Defendant’s instant registration card is merely removal, and it does not constitute destruction act. The victim recovered only one CCTV even if all of the instant registration cards, etc. were sufficiently recoverable.

5. Conclusion

Thus, the facts of the instant case constitute a crime, and thus, the facts of the instant case are not found guilty pursuant to the former part of Article 325 of the Criminal Procedure Act. However, the summary of the instant judgment is not publicly announced pursuant to the proviso of Article 58(2) of the Criminal Act

Judge Cho Jin-han