(영문) 대법원 2019.7.25. 선고 2016도9773 판결

1. A. The summary of the facts charged in this case is that the Defendant, from June 16, 2015 to June 17:10, 2015, failed to comply with the demand to leave the subway security guards D under Article 50 of the Railroad Safety Act on several occasions in relation to the sale of liquid books against many and unspecified passengers without the right to sell liquid books.

B. The court below found the defendant guilty on the ground that the subway security officer, who is railroad workers, demands the withdrawal of the defendant on the premise that the sales of X-ri, prohibited from sale, was conducted at the store of this case, and that the defendant's act of failing to comply with this constitutes the crime of non-compliance with the eviction under the Criminal

2. The above determination by the court below is difficult to accept for the following reasons.

A. The crime of non-compliance with the eviction under Article 319(2) of the Criminal Act is committed, or the actual peace of a building, room, etc. is protected as a legal interest. Thus, if a lessee fails to comply with the demand for eviction from a resident, manager, or occupant or to leave a building, room, etc. (see Supreme Court Decision 2015Do4048, Dec. 10, 2015). Moreover, only with the legal authority to reside, manage, and occupy a residence, etc., it is not a resident, manager, or occupant (see, e.g., Supreme Court Decision 2006Do1890, Jan. 17, 2008). Even if a lessee was requested by a lessor to deliver the leased object upon the termination of a lease agreement, such demand does not lose the lessee’s right to residence, management, and right to possess a leased object.

B. The reasoning and records of the lower judgment reveal the following facts.

1) On January 6, 2014, L Co., Ltd. (hereinafter referred to as “L”) concluded the instant lease agreement to install and operate a book sales store from January 6, 2014 to April 5, 2019 by leasing a total of 300 square meters of each of 6 square meters of 50 subway stations (hereinafter referred to as “the instant store”) in total, including a store with six square meters of the history of Seoul Qro and Seoul subway 2, Seoul subway stations (hereinafter referred to as “instant store”).

2) Meanwhile, on December 26, 2013, before entering into the instant lease agreement, L entered into the instant joint operation agreement with K Co., Ltd. (hereinafter “K”) with L to supply the books and documents, and K to distribute profits by being responsible for operating and managing the leased object of this case.

3) On May 2014, K sold liquid book, etc. from the leased object of the instant case, and requested suspension two times in Seoul Meart. Accordingly, L requested Seoul Meart to approve the sale of liquid book, etc. from the leased object, but Seoul Meart refused the said request on May 23, 2014 and again requested suspension of the installation of sales facilities and the sales of goods unrelated to L.

4) On May 27, 2014, L notified K of the termination of the instant joint operation agreement on the grounds of the sales of non-approved items, and requested K to terminate the instant lease agreement on the grounds that no additional approval for items to be handled in Seoul metro was made on the same day, and that continuous operation was impossible.

5) On May 30, 2014, Seoul metro notified L on May 30, 201 that “the date of termination of the instant lease contract will be June 1, 2014.”

6) Since L and K did not deliver the leased object of this case to Seoul metro, Seoul metro, around September 2014, filed with L and K a motion for a provisional injunction against the possession transfer of the leased object of this case with the Seoul Central District Court on the provisional injunction against L and K, and received the decision from the said court. Then, Seoul metro.

On March 25, 2015, L and K filed a lawsuit against L and K claiming for the delivery and delivery of the leased object of this case.

7) On June 16, 2015, at the instant store where the said lawsuit was pending on or around June 16, 2015, K sold liquid book, etc., and as to this, K demanded that the subway security guards D, who belong to the Seoul metro, demand the Defendant to leave the instant store, which is an employee of K, but the Defendant did not comply with this demand. Examining the following circumstances revealed in the facts in light of the legal principles as seen earlier, the Seoul Qro and subway security guards D cannot be deemed as the occupant of the instant store or the person to whom the authority was delegated by the occupant or the occupant of the instant store, and thus, the Defendant’s failure to comply with the D’s request for eviction cannot be deemed as the crime of non-

1) Although the area of the instant store is 6 meters or more, the instant store was in the form of a structure that can not enter the instant store if a steel removal is made, and was in fact controlled and managed separately from the surrounding space.

2) On January 6, 2014, Seoul Qro delivered the instant store to L according to the instant lease agreement, and L around that time delivered the instant store to K pursuant to the instant Dong business operation agreement, and K acquired possessory right to the said store.

3) On May 30, 2014, Seoul Qro decided that the instant lease agreement will be terminated due to the termination notice given against L on May 30, 2014. However, insofar as the Seoul Mmerro did not receive the instant store, the said termination notice alone does not constitute the loss of the right to possess the instant store, and the Seoul Mmerro did not acquire the right to possess the said store.

D. Nevertheless, the court below held that the Defendant’s failure to comply with the demand for the eviction from the subway security officer D, under the premise that the store in this case is occupied by the Seoul mert constitutes a crime of non-compliance with the eviction. In so doing, the court below erred by misapprehending the legal principles on the occupant of the crime of non-compliance with the eviction, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. 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.