(영문) 서울북부지방법원 2019.8.30. 선고 2019노882 판결

The defendant has installed obstacles in front and rear front of the victim's vehicle and made it impossible to use them for "operation for its original purpose". This act of the defendant constitutes "other methods prescribed in Article 366 of the Criminal Act". Nevertheless, the judgment of the court below which acquitted the defendant on the grounds that it is erroneous in the misapprehension of legal principles.

2. Ex officio determination

In the trial of the court below, the prosecutor maintains the facts charged which the court below acquitted as not guilty, and maintains the name of the crime in the first place as it is, and applies for changes in the indictment in addition to the facts charged as shown in the attached Form, Article 314(1) of the Criminal Act. This court applied for changes in the contents of the indictment as stated in the attached Form. Thus, the judgment of the court below cannot be maintained any more.

However, despite the above reasons for ex officio destruction, the prosecutor's assertion of the misapprehension of the legal principles as to the primary facts charged is still subject to the judgment of the court. Thus, we examine the propriety below.

3. Judgment on the misapprehension of legal principles as to the prosecutor's primary facts charged

A. Summary of the facts charged

The facts constituting the crime column of the judgment used by the lower guest.

B. The judgment of the court below

The lower court determined that the Defendant’s act does not constitute “other methods” as referred to in the crime of property damage, on the premise that the crime of property damage is established in cases where property damage is caused by damage, concealment, or other means, and that the term “other methods” refers to all acts that interfere with the shape, characteristics, structure, or function of the goods themselves, such as damage or concealment, and that in this case, the act of the Defendant does not constitute “other methods” as referred to in the crime of property damage, on the ground that there was no impediment to the shape, structure

C. Judgment of the court below

1) The crime of destroying and damaging property under Article 366 of the Criminal Act is established when a crime of destroying or concealing another’s property or undermining its utility by any other means. Here, the term “conscising the utility of property” refers to, in fact or by an appraisal, converting the property into a state in which it is impossible to provide it for the original purpose of use, and includes temporarily converting the property into a state in which it is impossible to use it (see, e.g., Supreme Court Decisions 93Do2701, Dec. 7, 1993; 2016Do3369, Aug. 30, 2016; 2017Do1807, Jul. 24, 2018).

2) According to the evidence duly adopted and examined by the lower court, the victim parked the BMW car operated by the victim at the place indicated in the facts charged on July 7, 2018. The Defendant discovered this day on the same day, installed obstacles difficult to remove the car in the front and rear, such as the facts charged, and the victim failed to drive the car in the front and rear of the said car, but attempted to leave the car in the front and rear, with two police officers called the 112 report and called the 112 report, but failed to move the obstacle, and the victim was unable to drive the car for about 18 hours until July 8, 2018.

If the facts are identical to this, even if the victim's vehicle did not cause a material form change, destruction, or decrease in the victim's vehicle, it should be deemed that the victim's vehicle cannot be temporarily provided for its original purpose of use by installing obstacles by the defendant. Therefore, in light of the above legal principles, the above act of the defendant constitutes "a case where the victim's above act harms its utility by any other means" as provided for in Article 366 of the Criminal Act.

3) On this basis, the Defendant asserted that the crime of causing property damage was established on the ground that ① there was no obstacle that the victim would operate a car after the obstacle was placed, ② the victim was parked voluntarily and interfered with the Defendant’s legitimate use of the parking zone without permission from the manager, ③ the Defendant did not make any special efforts or pay expenses to the victim by placing obstacles on his own thereafter, ④ the victim did not demand the Defendant to remove obstacles directly. As seen earlier, the crime of causing property damage is established regarding temporary utility infringement under Article 366 of the Criminal Act: ①, the above circumstances are limited to the circumstances after the crime was committed; ② the circumstances are merely the circumstances about the motive for the crime, and it is difficult to view that the circumstances affect the establishment of the crime itself. Moreover, even though the victim made efforts to remove obstacles installed in front and rear his own car, it is difficult to view that the Defendant’s act of infringing on the utility of the above Defendant’s vehicle was not in violation of social norms or self-defense.

4) Ultimately, the Defendant should be deemed to have committed the crime of property damage under Article 366 of the Criminal Act. Nevertheless, the lower court acquitted the Defendant of the primary charges solely on the ground that the victim’s shape, structure, function, etc. of the vehicle itself did not cause any trouble to the victim’s own shape, structure, function, etc. In so determining, the lower court erred by misapprehending the legal doctrine on the crime of property damage

4. Conclusion

Therefore, the court below's judgment is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act, and the prosecutor's appeal is also justified, and it is again decided as follows (Provided, That as long as it is found guilty of primary facts charged, the court below's judgment is not separately judged as to the primary facts charged

【Grounds for the Judgment of the Supreme Court】

Criminal facts

On July 7, 2018, the Defendant: (a) around 13:22, around Csung Factory located in Nowon-gu in Seoul Special Metropolitan City; (b) reported that the Defendant parked the ESW car at the place where the Defendant parkeded the eM car; and (c) the victim was unable to drive the car at a close range to the 120cm high in front of the said car with the aim of preventing the use of the said car; and (d) made the eM passenger car more effective by other means until July 8, 2018, by making the eM car difficult to move.

Summary of Evidence

1. The defendant's partial statement in court below

1. A complaint (including photographs attached thereto);

1. Statement made to D by the police (first time);

Application of Statutes

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

Article 366 of the Criminal Code, Selection of Fines

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

Reasons for sentencing

The defendant's act of installing obstacles makes it impossible to use the victim's car, the victim's attempt to get the vehicle to be operated by cutting off the vehicle, thereby causing damage to the body of the vehicle. However, the above situation of impossibility of use was temporary, the victim's unauthorized parking was a cause of crime, and other sentencing conditions specified in the records and arguments of this case, including the defendant's age, character and conduct, environment, and circumstances after the crime, shall be comprehensively taken into account.