Defendant

Defendant and Prosecutor

United States of America

Attorney Lee Dong-soo (Korean)

1. Seoul Central District Court Decision 2009Gohap167 decided Apr. 3, 2009 (hereinafter “First Judgment”) / Seoul Central District Court Decision 2009Gohap416 decided May 8, 2009 (hereinafter “Second Judgment”)

All of the first and second original judgments shall be reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

1. Summary of grounds for appeal;

A. On the first judgment of the court below

(i) mistake of facts concerning the prevention of general goods (inspection)

Since recycled goods, etc. with a fire by the defendant are managed by the competent authority or the collection business entity, it is not a non-owned goods, and it is deemed that the public risk has occurred in light of the scale of the fire in this case, etc., so the crime of fire prevention of general goods under Article 167 (1)

(ii) Mental and physical disorder;

At the time of each of the crimes in this case, the Defendant was under the influence of alcohol and was in a state of mental disability or mental disability.

3) Unreasonable sentencing (Defendant and Prosecutor)

The defendant asserts that the sentence of the court below (one year of imprisonment with prison labor, two years of suspension of execution, and probation) is too unreasonable, and the prosecutor asserts that the above sentence is too unhued and unreasonable.

B. On the second judgment of the court below

The defendant asserts that he was under the influence of alcohol at the time of committing the crime of this case, and that he was in the state of mental disability or mental disability

2. Determination

A. As to the assertion of mistake of fact

1) Summary of the facts charged

On January 26, 2009, the Defendant: (a) discovered recyclable materials and garbage, etc. located around the electric poles at the street of Dongjak-gu Seoul Metropolitan Government on January 26, 2009; (b) caused fire to the extent that the flame thereof could have on the electric wires of the electric poles; and (c) caused danger to the public by setting fire to the objects of others.

2) The judgment of the court below

The prosecutor is prosecuted by applying Article 167(1) of the Criminal Act to the above facts charged, and the court below first determined that the crime of fire-prevention of general goods under Article 167(1) of the Criminal Act cannot be established on the grounds that the "recycling goods and garbage, etc." are merely a non-owned object of another person who has already renounced ownership.

Furthermore, with respect to the establishment of general goods and fire prevention under Article 167(2) of the Criminal Act, the lower court acquitted all of the charges charged on the ground that it is difficult for Nonindicted 1’s witness of the lower court to believe that, at the time, flames had caused public danger by allowing them to affect the electric wire of the electric poles, each description of Nonindicted 1’s written statement and investigation report (the confirmation of the fire of Nonindicted 1’s fire and things adjacent to the fire scene) and each image of field photographs are insufficient to recognize it, and there is no other evidence to acknowledge it, and even if the public danger occurred in detail at the time, it is difficult to view that the Defendant destroyed the goods while recognizing the public danger.

3) Determination of the immediate deliberation

First of all, the "goods" under Article 167 (1) of the Criminal Act should be deemed to be limited to the possession by another person. The above "recycling goods and garbage, etc." are merely non-owned goods that have already renounced ownership by another person, and there is no evidence to acknowledge another person's control and management of the above goods as alleged by the prosecutor. Thus, the judgment of the court below that the crime of causing fire to general goods under Article 167 (1) of the Criminal Act cannot be established as to the above facts charged is just. Therefore, the above "recycling goods and garbage, etc." should be deemed to correspond to "goods owned by another person" under Article 167 (2) of the Criminal Act.

Furthermore, the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., it appears that the drying was made at the time of the instant case and the wind was not high at the time of river, and the location of the instant case is the house, even if it is based on the on-site photograph (33 to 39 pages of the evidence of 2009Gohap167 case), combustible materials, such as placards, chairs, and joint plates, were scattered in the place, and there was no other combustible materials such as recyclable materials, and the height of flames first flick up to 3 times of the Defendant’s height (160cm of evidence of the instant case, 167, 84 pages), and the height of the electric wires installed at the place where there was no other dangerous materials from the place where there was no damage to the Defendant’s height by using the above flick to the electric wires, and there was no further reason to put them into the place where there was no damage to the Defendant’s height of the electric wires installed by the above flter.

B. As to the assertion of mental disorder (the part of the judgment of the court of first instance on the acquittal is examined as to the defendant's argument)

According to the evidence duly adopted and examined by the court below, although the defendant was found to have been somewhat drinking at the time of each of the crimes of this case, considering the process and process of each of the crimes of this case, the defendant's behavior before and after the crime of this case, etc., it cannot be seen that the defendant had the ability to discern things or make decisions due to the state of his taking-off. Thus, the above argument by the defendant is without merit

C. Ex officio determination

Before the judgment on the argument on unfair sentencing as to each of the above, as each of the above cases of the judgment of the court below is merged in the trial of the party, each of the crimes in the judgment of the court below against the defendant is a concurrent crime under the former part of Article 37 of the Criminal Act, and the judgment of the court below should be rendered concurrently under Article 38(1) of the Criminal Act, and one of the crimes shall not be maintained any more.

3. Conclusion

Thus, since the prosecutor's appeal is partially well-grounded and the above reasons for reversal of authority are based on the above reasons, the judgment of the court below is reversed under Article 364 (2) and (6) of the Criminal Procedure Act without examining the argument of unfair sentencing, and it is again decided as follows.

The summary of the facts of the crime and evidence recognized by this court is as follows, except for adding ‘the criminal facts added' and ‘the summary of the evidence added ‘the summary' to be added ‘the following', so it is identical to each corresponding column of the judgment of the court below.

On January 26, 2009, at around 22:25, the Defendant: (a) discovered recycled goods and garbage, etc. located around the electric poles at the street of Dongjak-gu Seoul Metropolitan Government (number 1 omitted) around 22:25, 2009, and caused public danger by setting fire by inserting the inflammable combustible materials up to 160cm.

1. Legal statement of Nonindicted 1’s witness

1. A written statement of Nonindicted 1’s preparation and an investigation report (defendant’s fire-related relation)

1. Each image of a field photograph (33 through 39 pages of evidence of 209 altitude167);

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

Article 366 of the Criminal Act (Destruction and Damage of Property, Selection of Imprisonment), Articles 3 (1) and 2 (1) 1 of the Punishment of Violences, etc. Act, Article 283 (1) (Intimidation) of the Criminal Act, Article 167 (2) and (1) of the Criminal Act (the occupation of setting fire against general goods of January 26, 2009), Article 167 (1) of the Criminal Act (the occupation of general goods of April 3, 2009), Article 167 (1) of the Criminal Act (the occupation of general goods of April 3, 200)

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Punishment of Violences, etc. with the largest Punishment of Violences, etc. (Intimidation of Group, Deadly Weapons)]

In light of the fact that the defendant has been punished for the crime of fire-fighting of the main building, and that the defendant committed another crime of fire-fighting on the date of the release of the suspended sentence after being sentenced to the judgment of the court of first instance, and that the defendant committed another crime of fire-fighting on the date of the release of the suspended sentence, without any particular reason, and that the nature of the crime is bad, such as intimidation of victims and damage to church properties, etc., the defendant shall be punished with severe punishment: Provided, That the defendant is a person who conducts a crime after drinking alcohol and contingent, there is no criminal conviction, and the non-indicted 2 does not want the punishment of the defendant, and the punishment shall be determined as ordered in consideration of all the sentencing conditions of the case, such as the defendant's age, character and behavior, environment, family relationship

Of the facts charged in this case, the summary of the facts charged concerning the fire prevention of general goods on January 26, 2009 is as stated in Article 2-A of the above facts charged, and as seen above, Article 167 (1) of the Criminal Act cannot be applied to the above facts charged, so a not-guilty verdict should be made pursuant to the former part of Article 325 of the Criminal Procedure Act, but as long as the court found the defendant guilty of the general goods fire prevention crime under Article 167 (2) of the Criminal Act which is related to the crime of a single offense, the judgment of

It is so decided as per Disposition for the above reasons.

Judges Temporary (Presiding Judge)