2015No4491 Property damage and damage

1. A;

2. B

Defendants

Admonishment, admonishment, etc. (public trial)

Law Firm C (private ships for Defendant A)

Attorney D

Suwon District Court Decision 2015 High Court Decision 542 decided July 16, 2015

February 5, 2016

The judgment of the court below is reversed.

Defendants shall be punished by a fine of KRW 1,500,000.

In the event that the Defendants did not pay the above fines, each of the above fines of KRW 100,000 shall be confined to the Labor House for the period converted into one day.

Each of the above fines shall be ordered to pay an amount equivalent to the above fines to the Defendants.

1. Summary of the grounds for appeal (Defendant A1);

A. misunderstanding of facts or misunderstanding of legal principles

The victim G corporation did not achieve the purpose of the right of retention with the instant container, and even if there was the moving of the instant container, its own utility does not have been impaired. In addition, Defendant A sought the owner of the instant container over several days, but could not file a lawsuit claiming the exclusion of interference with civil rights or the exclusion of interfering with the right of possession. Thus, Defendant A’s moving of the instant container constitutes the act of self-help. Therefore, the judgment of the court below convicting Defendant A, even though the crime of damage to property cannot be established, is erroneous in the misapprehension of legal principles or erroneous determination of facts.

B. Unreasonable sentencing

The punishment of the lower court (fine 3,000,000) is too unreasonable.

2. Ex officio determination

(a) Alteration of indictment;

ex officio, in the trial of the case against the Defendants, the part of the “victim G Co., Ltd. claiming a right of retention in front of the above building” and the part “C Co., Ltd., about KRW 5,00,000 at the market price” in each of the facts charged in this case against the Defendants were “for the use of the above building, the injured JJ applied for a change in the indictment to the effect that “A approximately KRW 1,200,000 at the market price and the case was changed to the subject of the judgment.” As such, the judgment of the court below against the Defendants

B. As to Defendant A’s assertion of mistake or misapprehension of legal principles

1) Although the above reasons for ex officio reversal exist, Defendant A’s assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of this court, and this is examined.

2) The lower court acknowledged the following circumstances based on the evidence duly adopted and investigated by the Defendant A, namely,, the date and time and place indicated in the above crime, and the container installed and managed by G Co., Ltd. (hereinafter referred to as “G”) was moved to another place without the consent of G. The container that the Defendant A moved to another place was installed and managed in the said place to claim the right of retention, and the Defendant A moved the container to another place and stored it.

Even if the above container and the article in the above container were not destroyed physically, it is deemed that the container was made as a means of occupying the building for the purpose of exercising the right of retention at the time, and thus, it constitutes a case where the utility of the property subject to punishment is harmed in the crime of causing property damage, thereby recognizing the crime of causing property damage to the defendant A.

According to the records of this case, even if J, which appears to be the actual owner of the container of this case, was changed to the facts charged, for the purpose of using the building, even if the defendants moved the container of this case to the actual owner of the container of this case, it is reasonable to determine the above facts by the court below since the moving of the container of this case to the extent that the defendants took the role

3) Furthermore, although Defendant A asserted that he could not find the owner of the instant container over several days, it is doubtful whether Defendant A could not know the owner of the instant container at the time of the transfer of the instant container (the investigation record 58 pages) in fact at the time of Defendant A’s arbitrary transfer of the instant container without due judicial procedure, if Defendant A’s arbitrary transfer of the instant container without due process is impossible, it cannot be deemed that Defendant A’s arbitrary transfer of the instant container constitutes “a substantial act to avoid the impossibility or significant difficulty in its execution” in the event that Defendant A’s arbitrary transfer of the instant container without due process cannot be seen as “a considerable act to avoid the impossibility or significant difficulty in its execution.”

4) Therefore, the judgment of the court below which recognized Defendant A as a crime of property damage is just, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged in the grounds of appeal, and there is no ground for appeal.

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant A's above assertion of unfair sentencing, and the judgment of the court below is reversed, and it is again decided as follows.

Criminal facts and summary of evidence

The facts constituting the crime acknowledged by this court and the summary of the evidence are as indicated in the judgment below, inasmuch as the part concerning "victim G Co., Ltd. claiming a lien before the above building," and the part concerning "3,00,000 won at the market price," in each of the facts constituting the crime, are excluded from the fact that "the victim JJ in order to use the above building," and " approximately KRW 1,200,000 at the market price," both of them are the same as indicated in the judgment below. Accordingly,

Application of Statutes

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

Articles 366 and 30 of the Criminal Code (Selection of Fine)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act provides that even though the Defendants did not go through lawful procedures, Defendant B is even aware of the fact that his act constitutes the subject of punishment, and the nature of the crime is not somewhat weak. However, the value of the container of this case itself is difficult to view that the value of the container of this case itself is high. Defendant A is a primary offender and other circumstances, including the Defendants’ age, character and conduct, environment, family relationship, and circumstances after the crime, etc., the sentence is determined as per the order.

The judge lowest date of the judge;

Judges' Promotion of Technology

Judges Kim Jin-jin

1) Defendant B did not submit the statement of grounds for appeal within 20 days from August 17, 2015, even after Defendant B was served with the receipt of the notification of the receipt of the trial records.