The case holding that the act of damaging locks owned by the buyer during the process of restoring the buyer's possession after the buyer arbitrarily replaced the locks of the apartment while the lessee refused to deliver them to the successful bidder in the voluntary auction procedure by asserting the opposing power, constitutes a justifiable act.

The case holding that the act of damaging locks owned by the buyer during the process of restoring the buyer's possession of the apartment as the buyer voluntarily replaced the locks of the apartment while the lessee refused to deliver them to the successful bidder in the voluntary auction procedure by asserting the opposing power, constitutes a justifiable act.

Articles 20 and 366 of the Criminal Act

Defendant

Defendant

Kim Jin Kim

Seoul Western District Court Decision 2007Gohap151 Decided February 23, 2007

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal by the defendant;

The Defendant, as a legitimate tenant with opposing power at the time of the instant case, occupied the Eunpyeong-gu Seoul Metropolitan Government 17-9 Revised Apartment Operations 402 (hereinafter “instant apartment”), and thus, the complainant violated the Defendant’s possession and installed an accompanying locks and other locks without permission. However, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby convicting the Defendant of the facts charged.

2. Determination on the grounds for appeal

A. Summary of the facts charged in this case

The Defendant: (a) The apartment of this case was owned by the victim non-indicted 1, who was awarded a successful bid in the name of Non-indicted 2 and paid the successful bid price in full on June 3, 2005; (b) the ownership transfer registration was made until June 3, 2005 (the ownership transfer registration was made in the name of Non-indicted 3 as of December 19, 2005); (c) the Defendant asserted the return of the lease deposit, refused to deliver it, and was living illegally and continuously, on March 10, 2006, was temporarily restored by the victim around 15:30 on March 10, 206; and (d) the apartment door door was replaced with the above apartment door door. However, around 11:00 on March 11, 2006, the above replaced apartment door was installed by requesting the owner of the above apartment door with no authority to do so, and installed the apartment lock installed by the victim, thereby impairing the use of other property.

B. The judgment of this Court

(1) The phrase “act which does not contravene social norms” under Article 20 of the Criminal Act refers to an act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Thus, where a certain act satisfies the requirements such as legitimacy of the motive or purpose of the act, reasonableness of the means or method, legal interests protected, balance between the legal interests protected and the legal interests infringed upon, urgency, and supplementary nature that there is no other means or method than the act (see Supreme Court Decision 2003Do3902, Apr. 13, 2006, etc.).

(2) According to the evidence duly admitted by the court below and the defendant's evidence 2. On June 12, 190, the defendant, who had been living in the apartment of this case, completed the registration of ownership transfer on June 14, 202, the defendant had been forced to purchase the apartment of this case from non-indicted 4 on October 10, 202 and continued to reside in the above non-indicted 5. The defendant's non-indicted 2's non-indicted 5's non-indicted 2's non-indicted 6's non-indicted 2's non-indicted 10's non-indicted 6's non-indicted 1's non-indicted 6's non-indicted 1's non-indicted 6's non-indicted 2's non-indicted 6's non-indicted 1's non-indicted 6's non-indicted 1's non-indicted 6's non-indicted 2's non-indicted 6's non-indicted 1's non-indicted 6's non-indicted 1's non-6'

(3) According to the aforementioned legal principles and facts, the defendant continued to reside in the apartment of this case from June 12, 1990 to enter into a lease agreement on January 18, 2003, and has a fixed date on February 8, 2003. Thus, the defendant has continued to seek legal disputes with the victim and believe the successful bidder of the apartment of this case as a tenant with legitimate opposing power during the voluntary auction procedure for the right to collateral security established thereafter, and ② as such, in the situation where the defendant asserted that he is a tenant with legitimate opposing power while occupying the apartment of this case, the arbitrary replacement of the locks of the apartment of this case without lawful compulsory execution procedure is deemed to have deprived of the defendant's property right, which is the actual continuous possession of the apartment of this case. ③ Thus, the defendant's arbitrary replacement of the locks installed by the victim is deemed to be an urgent act to avoid unjust infringement of possession, and it is recognized that the defendant's damage to the apartment of this case does not violate the legal interests and interests of the victim.

(4) Therefore, although the facts charged in this case do not constitute a justifiable act, the lower court erred by misapprehending the facts charged or by misapprehending the legal doctrine as to a justifiable act, thereby finding the Defendant guilty of the facts charged. The Defendant’s ground of appeal assigning that the facts charged did not constitute a crime is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is so decided as per Disposition after pleading.

The summary of the facts charged in this case is the same as that of the above 2-A., and the facts charged in this case constitutes a case that does not constitute a crime as stated in the above 2-B. and thus, is acquitted under the former part of Article 325 of the Criminal Procedure Act.

Judges Park Jae-il (Presiding Judge)