Defendant

Prosecutor

Chuncheon (public trial acting on behalf of a public prosecutor, indictment), and Clerks (public trial)

Attorneys Kim Bo-ra (Korean National Assembly)

Seoul Eastern District Court Decision 2017 High Court Decision 2017 High Court Decision 80 decided August 8, 2017

The judgment of the court below is reversed.

The sentence of sentence against the defendant shall be suspended.

1. Summary of grounds for appeal (misunderstanding of facts and misapprehension of legal principles)

In light of the fact that the Defendant entered the instant apartment parking lot in violation of the court’s decision prohibiting access to the parking lot, the council of occupants’ representatives of the instant apartment building decided to prohibit the Defendant from entering the parking lot, and the Defendant’s access is contrary to the intent of the occupants who are co-residential persons, the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby acquitted the Defendant of the facts charged.

2. The facts charged in this case

On August 8, 2016, the Defendant was subject to a provisional disposition of prohibiting entry into the apartment parking lot to the effect that “the Defendant shall not enter for rent-off business on the parking lot of 176,051,22 square meters of the Seoul Songpa-gu Seoul Eastern District Court’s 21 Civil History (2016Kahap109) with the intention of having the victim Nonindicted 3, the second underground in the apartment parking lot of △△△△△△△△△△ apartment structure (location omitted) and the concrete roof 176,051,22 square meters of the 176,000 square meters of the △△△△△△△△ apartment.” Nevertheless, on September 22, 2016, the Defendant went into the apartment parking lot managed by the victim Nonindicted 3, the second underground floor of the Songpa-gu Seoul Metropolitan Government ( Address 2 omitted) (○○dong and △△△ apartment) (hereinafter referred to as “the apartment parking lot”).

3. The judgment of the court below

In full view of the circumstances in the judgment below, the court below sentenced the defendant not guilty on the ground that it is difficult to see the defendant's act as a violation of the building and that the defendant was aware of having access against

4. Judgment of the court below

A. In a case where there are multiple residential persons, one person’s consent is directly or indirectly against the will of another resident, and a person’s access to the residence is thereby against the will, thereby undermining the peace of the residence, that is, the control and peace of the management of the residence (see Supreme Court Decision 83Do685, Jun. 26, 1984).

B. In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, it is reasonable to view that the act of entering the apartment parking lot of this case directly goes against the intention of other co-resident owners who did not conclude a detailed contract with the defendant, and thus, it constitutes a crime of intrusion upon the building since the act of entering the apartment parking lot of this case constitutes a harm to the freedom and peace of residence of the above resident owners

① The instant apartment parking lot constitutes a common part of an aggregate building; the common part belongs to the co-ownership of sectional owners; each co-owner may use the common part in accordance with his/her purpose. However, the phrase “allowing an outside person other than a resident to rent a vehicle by allowing him/her to regularly enter the said parking lot” cannot be deemed to be included in the original purpose of the parking lot used by the resident for public use.

Therefore, even if the council of occupants' representatives who have the authority to decide matters concerning the management of the section for common use decides whether to allow the rent service in the parking lot as the management method, and the restriction of the service company, it cannot be said that the resolution infringes without the authority of the occupants to use the section for common use.

② The council of occupants’ representatives of the instant apartment was, as a method of managing the parking lot, a resolution that prohibits the Defendant from having access to the parking lot for the following business, and then filed an application against the Defendant for provisional disposition prohibiting access to the apartment parking lot in this Court 2016Kahap10109, and this Court decided to accept the application on August 8, 2016.

Therefore, it can be deemed that many residents, other than those who have entered into a three-dimensional service contract with the Defendant, expressed explicitly the intent that “the Defendant oppose the entry to the instant apartment parking lot for the three-dimensional business purposes.”

③ The risk of various thefts, accidents, safety accidents, etc. is increased if the third-party business operators who are not managed by the council of occupants’ representatives arbitrarily download in the parking lot, and the safety of the residents may be endangered if the outside person readily access the space where the occupants reside through the elevator of an underground parking lot. Therefore, the entry of the third-party business operators can be recognized as threatening the peace of residence by the occupant who does not consent thereto.

④ Since the Defendant is a party to the above provisional disposition, it can be deemed that the Defendant recognized the circumstance that “ multiple occupants explicitly oppose the entry of the Defendant for the rent-on business.”

[On the other hand, the judgment of this court 2014 High Order 2288 Case, etc. submitted by the defendant, is different from this case where there is no express resolution of prohibition of entry by the council of occupants' representatives which is the manager of the parking lot.]

C. Therefore, even though the defendant's act constitutes the infringement of a structure, and the defendant's intention can be recognized, the judgment of the court below which acquitted the defendant, which erred by misapprehending the facts or misapprehending the legal principles, thereby affecting the conclusion

5. Conclusion

Therefore, the prosecutor's argument is with merit, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

[Grounds for multi-use Judgment]

Criminal facts

The facts charged by this court are as stated in Paragraph (2) of the reasoning of the judgment of the court below.

Summary of Evidence

1. Partial statement of the defendant;

1. The police statement of Nonindicted 3

1. Text of decision;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 319(1) of the Criminal Act (Selection of Punishment of Fines)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act (one day per fine of 100,000 won)

1. Suspension of sentence;

Article 59(1) of the Criminal Act (Taking into account the fact that the defendant entered a parking lot to implement the existing service contract and the fact that the defendant has no previous record of the same kind of crime)

1. Sentence to be suspended; and

Fines 1,000,000

Justices Kim Jae-ok (Presiding Justice)