2011No3422 Fire prevention of general goods (the name of preliminary crime: fire prevention of general goods owned by oneself)

A

Defendant

On the spot, a prosecution is held, or a trial is held.

Attorney D (Korean Office)

Seoul Southern District Court Decision 2011Gohap415 Decided November 24, 2011

May 31, 2012

The judgment of the court below is reversed.

The defendant is not guilty. The summary of the judgment of this case shall be published.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

The lower court found the Defendant guilty of the facts charged of this case, even though it did not have any intention to cause public danger by setting fire to the hacks fence for controlling the external access of the National Assembly, and 8 meters in length, and did not have any fire, and there was no specific occurrence of public danger. At the time, there was no intention on the fact that the Defendant destroyed the hacks fence for controlling the external access of the National Assembly, and the hacks of 8 meters in length, and thereby causing public danger.

B. Unfair sentencing

Considering the various circumstances against the defendant, the sentence imposed by the court below (one year of suspended sentence in six months of imprisonment) is too unreasonable.

2. Ex officio determination

Before the judgment on the grounds for appeal by the defendant was made ex officio, the prosecutor maintained the first facts charged at the trial and applied for the amendment of the indictment to add the "general goods for own use" to the name of the crime, "Article 167 (2) and Article 48 (1) of the Criminal Act" to the applicable provisions of the Criminal Act, and as the subject of the judgment was changed by this court's permission (as the prosecutor added the conjunctive facts charged at the trial, the first facts charged became the primary facts charged).

However, even if there are such reasons for ex officio destruction, the argument of misunderstanding of facts and misunderstanding of legal principles as to the primary facts charged by the defendant is still subject to the judgment of the court of this Court, and since the ancillary facts charged (general goods fire prevention) and the primary facts charged are only the objects of the fire, it will also be examined as well as the primary and conjunctive facts charged.

3. Judgment on the primary and conjunctive charges

A. Summary of the facts charged in this case

(1) Summary of main facts charged (general goods and fire prevention)

Around 18:40 on June 20, 201, the Defendant: (a) installed a tin plate and tin plate, which was prepared in advance, in India at the top of the president of the National Assembly of Yeongdeungpo-gu, Yeongdeungpo-gu, Seoul; and (b) set off 50cc in diameter in which typiums, nitrogen, and chlorates are mixed, and then set a iron tin bag with a height of 10cc in height, which is 10cc. Around 18:40 on June 20, 201; and (c) the Defendant destroyed the Defendant by setting a marium, altium, and alttriium, which were stored in the mar bag, with a one-time premium attached to the alcohol mar, so that it can be put to a stringer who was covered by it; and (d) the Defendant destroyed the Defendant by setting fire to the public by extending the amount of the dangerous things by 8m and decreasing the outer control fence for repair costs equivalent to KRW 5 million.

(2) A summary of the conjunctive charge (public goods and fire prevention)

On June 20, 2011, at around 18:40, the Defendant: (a) installed a tin plate and tin plate, which was prepared in advance, in India at the top of the president of the National Assembly of Yeongdeungpo-gu, Yeongdeungpo-gu, Seoul; (b) placed 20cc in diameter in which typiums, nitrogen, and calcium mixturess are put; and (c) thereafter, the Defendant delayed the entry and exit of a large number of articles owned by the National Assembly, which require repair costs of KRW 50,000,00,000, by attaching a one-time plate to alcohol lamps, thereby reducing the risk to the public and causing danger to the large number of articles owned by the Defendant.

B. Judgment on the primary and ancillary charges: Whether the crime of fire prevention was committed

(1) At the time of the instant case, we examine whether the Defendant had intention to commit the crime of setting fire against general goods (the principal charge) or the crime of setting fire against general goods owned by him (the preliminary charge).

(2) The subjective element of the constituent element of a crime refers to the case where the possibility of occurrence of a crime is uncertain and it is acceptable. The possibility of occurrence of a crime is recognized in order to have dolusence. Furthermore, there is an intent to deliberate on the risk of occurrence of a crime as well as to allow the risk of occurrence of a crime. Whether or not the offender has accepted the possibility of occurrence of a crime must be determined by considering how the general public can evaluate the possibility of occurrence of a crime based on the specific circumstances, such as the form of the act and the situation of the act, etc. that are externally revealed without depending on the statement of the offender. In such a case, the prosecutor bears the burden of proving the existence of dolus negligence, which is the subjective element of the crime charged. On the other hand, the conviction should be based on evidence with probative value, which leads to the judge's conviction that there is no reasonable doubt. Thus, if there is no such evidence, even if there is no doubt about the defendant's guilt, it is inevitable to determine the defendant's profit).

(3) 원심 및 당심에서 적법하게 증거조사를 거친 증거들을 종합하면, ① 피고인은 평소 E 외 6인을 상해죄 등으로 고소한 사건의 처리결과에 불만을 품고 있던 중 사회적 이목을 끌기 위하여 2011. 6, 20. 18:40경 국회의사당 정문 옆 인도에 일명 '스모그 폭탄'을 제조 · 설치한 사실, ② 위 스모그 폭탄은 알코올램프(지름 10cm, 높이 10cm), 삼발이(높이 12cm), 직사각형 모양의 석면망 및 질산칼륨(KNO3)과 아질산칼륨(KNO2)의 혼합물이 담긴 원기둥 모양의 캔(지름 20cm, 높이 10cm)을 순차로 쌓아올리는 방식으로 제조되었고, 위 알코올램프에 불을 붙여 위 원기둥 모양의 캔을 지속적으로 가열하면 위 질산칼륨과 아질산칼륨의 혼합물이 연소하면서 "쉬~이!" 하는 소리와 함께 연기가 치솟도록 설계된 사실, ③ 피고인은 위 스모그 폭탄을 터트리기 위하여 위 알 코올램프에 일회용 라이터로 불을 붙인 다음 경찰관 등이 이를 폭발 전에 제거하지 못하도록 종이상자로 잘 덮어둔 사실, ④ 피고인이 위 알코올램프에 불을 붙인 때로부터 10분 정도 지난 후에 '퍽!' 하는 소리와 함께 위 종이상자에서 연기가 피어나면서 불길 이 솟아올랐는데, 초기에는 불길의 높이가 1m에 달하기도 했으나 오래지 않아 불길이 잦아는 사실, ⑤ 위 화재 당시 위 질산칼륨과 아질산칼륨의 혼합물은 위 알코올램프에 의한 지속적인 가열에도 불구하고 용융되어 그 표면에 일시적인 점화가 있었을 뿐 활발하게 연소하지는 않은 것으로 보이며, 위 종이상자의 불은 위 질산칼륨과 아질산칼 륨의 혼합물이 아닌 알코올에서 옮겨 붙은 것으로 추정되나 그 정확한 진행경과는 알 수 없고, 위 알코올램프가 파손된 시점도 위 종이상자에 불이 옮겨 붙기 전인지 후인지 정확히 알 수 없는 사실,2) ⑥ 위 화제로 인하여 위 종이상자는 전소하였으나, 대한민국 소유의 국회의사당 외곽출입 통제용 쇠 울타리와 장미 8m 가량은 약 50만 원 상당의 수리비가 들도록 불과 연기에 그을렸을 뿐인 사실 등을 인정할 수 있다.

(4) Examining these facts in light of the legal principles as seen earlier, it is difficult to readily conclude that at the time of the instant case, there was a perception and intent to manufacture and install the above scapbane to attract social interest and vision to the Defendant, and that there was a perception and intent to base them, and that there was no change in the prosecutor’s indictment, even if the instant act constitutes a crime of realization or seriousization, Defendant cannot be punished for the crime of realization or serious negligence in this case where there was no change in the prosecutor’s indictment.

(5) Therefore, the judgment of the court below which found the defendant guilty of primary charges on the premise that the defendant had an intention to prevent fire of general goods at the time of the instant case, was erroneous in the misapprehension of legal principles as to willful negligence, which is a subjective element of the crime of fire prevention, and thereby affected the conclusion of the judgment. Thus, the defendant's ground of appeal

C. Judgment on the primary facts charged: Whether the crime of causing fire to general goods can be committed

(1) Even if the Defendant had dolusorous intent to prevent general goods at the time of the instant case, if the general goods fire crime was committed against the Defendant at the time of the instant case, the Defendant ought to cause public danger by setting fire to the external fence of the National Assembly owned by the Republic of Korea by setting fire and setting fire to the external entrance control of the National Assembly, and by setting fire to the size of eight meters at the 8 meters long. As such, first of all, whether the Defendant destroyed the amount of eight meters at the external entry control of the National Assembly’s company, by setting fire to the Defendant.

(2) In light of the above legal principles, the crime of fire prevention can only be established when the defendant left the medium, and the important part of the object is lost and its original utility is lost. 4) Examining the above facts in light of the above legal principles, it cannot be deemed that the defendant left the above paper box (or the above alcohol box) which is the intermediate object of fire prevention, and it cannot be deemed that the defendant's general act of fire prevention was committed against the defendant's attempted crime, since it cannot be deemed that the defendant's general act of fire prevention was committed against the defendant's attempted crime of fire prevention, since the defendant's general act of fire prevention was not a separate penal provision as to the crime of attempted general goods.

(3) Therefore, the court below found the defendant guilty of primary facts charged on the premise that the external access control of the above National Assembly's company was damaged by fire force and the width of eight meters in dunes. Thus, the court below erred by misunderstanding facts or by misapprehending the legal principles on the concept of fire in the crime of fire by general goods, which affected the conclusion of the judgment. Thus, the defendant's ground for appeal on this ground is justified (On the other hand, as long as the defendant did not extinguish the amount of eight meters in dunes and the outer access control of the National Assembly's company, it is not necessary to further examine whether there was a concrete public danger).

4. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the defendant's factual errors and legal scenarios are well-grounded. Thus, the court below's decision is reversed and it is so decided as follows.

The gist of the facts charged around the instant case and the ancillary facts charged are as stated in the above 3-A, and as described in the above 3-b. and 3-c., the facts charged around the instant case and the ancillary facts charged constitute a case where there is no proof of crime, and thus, the Defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the instant judgment is announced publicly pursuant to Article 58(2) of the Criminal Act. It is so decided as per Disposition

The presiding judge and the lowest judge;

Judges Senior Superintendent

Judges Kim Gi-tae

1) Supreme Court Decision 2004Do74 Delivered on May 14, 2004

2) Witness F [The National Institute of Scientific Investigation as Industrial Researcher of the National Institute of Scientific Investigation....1. The type of chemical drugs and the record of destruction of doubtful objects of explosives....

Preparation and submission of an appraisal report on the manufacturing techniques of objects and the analysis of the ingredients of residuess, and this Court has prepared and submitted an appraisal report on ‘Nemanium, calium, and sugar mixtures' in this Court.

See the oral statement of the court in the case of the examination of the combustibility of this case

[3] Supreme Court Decision 2003Do5068 Delivered on January 27, 2004

(4) Supreme Court Decision 70Do330 Delivered on March 24, 1970, etc.