[1] The meaning of "harming the utility of a thing" among the elements of the crime of causing property damage, and whether it is also included in the crime of causing property damage in a state in which the property cannot be used temporarily (affirmative)

[2] The case holding that the judgment below erred in the misapprehension of legal principles as to the crime of causing property damage on the ground that the defendant's act did not constitute an act that impairs the utility of property in the crime of causing property damage, in case where Gap's act was installed in the advertisement board on the first floor street for publicity, but the defendant ordered Eul to remove Eul's advertisement board from the place and moved Eul's container to the warehouse, thereby making it impossible for Eul to use the advertisement board

[1] Article 366 of the Criminal Code / [2] Articles 30 and 366 of the Criminal Code

[1] Supreme Court Decision 71Do1576 Decided November 23, 1971 (Gong2007Ha, 1217), Supreme Court Decision 2007Do2590 Decided June 28, 2007, Supreme Court Decision 2016Do3369 Decided August 30, 2016, Supreme Court Decision 2017Do104 Decided December 13, 2017

Defendant

Prosecutor

Suwon District Court Decision 2017No2210 decided October 26, 2017

The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.

The grounds of appeal are examined.

1. The crime of causing property damage under Article 366 of the Criminal Act is established when the property of another person is destroyed or concealed, or where the utility thereof is harmed by any other means. The term “conscising the utility of property” refers to, in fact or in appraisal, converting the property into a state in which it cannot be provided for the original purpose of use, and includes temporarily converting the property into a state in which it cannot be used (see, e.g., Supreme Court Decisions 71Do1576, Nov. 23, 197; 2007Do2590, Jun. 28, 2007; 2016Do369, Aug. 30, 2016).

2. According to the evidence duly admitted, the victim set up each of the instant advertising boards (spacker and spacker for publicity) at the place indicated in the facts charged in order to promote “○○ Golf Academy” operated by himself, and the Defendant instructed the Nonindicted Party to put each of the instant advertising boards into a container as indicated in the facts charged, and the Nonindicted Party sent each of the instant advertising boards to a container so that the victim could not be used by the victim. In this regard, the victim stated that the Nonindicted Party stated that the instant advertising board was placed in a warehouse, and that the Nonindicted Party did not return each of the instant advertising boards to the police station, and that the Nonindicted Party stated that it was consistent with the said victim’s statement by the police.

3. If each of the advertising boards of this case, which the victim installed to publicize, was removed from the place and moved to the warehouse in the container, the advertising board of this case, even if it was moved to the warehouse without causing any change, loss, or loss in the material form, shall be deemed to have been unable to play its original role. Therefore, in light of the aforementioned legal principles, the above act by the defendant constitutes an act that undermines the utility of property in the crime of property damage under Article 366 of the Criminal Act.

4. Nevertheless, the court below affirmed the judgment of the court of first instance which acquitted the Defendant of each of the facts charged in this case, on the ground that the Defendant violated the utility of each of the advertising boards of this case and thereby making it impossible to provide them for the original purpose of use. In so doing, the court below erred by misapprehending the legal principles on the crime of causing property damage, thereby adversely affecting the conclusion of the judgment, and the prosecutor’s ground of appeal pointing this out is reasonable.

5. Scope of reversal

For this reason, the part of the judgment of the court below not guilty should be reversed. However, since the guilty part and the concurrent crime relation under the former part of Article 37 of the Criminal Act are concurrent crimes, a sentence should be imposed as to the whole. Thus, the judgment of the court below

6. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)