In a case where the Defendant, who applied for a candidate competition in a specific political party, was prosecuted for damaging property by removing an advance polling recommended banner installed in the name of the candidate candidate in the constituency in the constituency by the candidate competition, the case holding that the Defendant acquitted the Defendant on the ground that he was aware that his act was not an act permitted by the law at the time of removal of illegal banner, and that there was a justifiable reason for recognizing the error.

In a case where Defendant, who applied for a candidate competition in a specific political party, was prosecuted on the charge of damaging property by removing an advance polling recommended banner installed in the name of a candidate candidate in the constituency in the constituency by a candidate competition, the case holding that Defendant was acquitted on the ground that: (a) the Defendant did not have the right to remove an illegal banner (a banner not attached to the designated bulletin board managed by a local government; (b) the removal of banner does not constitute a justifiable act; (c) the Ordinance on the Management of Outdoor Advertisements, etc. by the relevant local government, which was in force at the time, can be compensated to an individual who collected illegal advertisements on the premise that an individual can remove illegal advertisements; and (d) the Defendant was removed solely or together with the public official in charge before the removal of the illegal banner, and that the Defendant knew that his act was permitted by law at the time of the removal of the illegal banner, and that there was a justifiable reason for misunderstanding.

Articles 16, 20, and 366 of the Criminal Act; Article 20(1)1 of the Outdoor Advertisements, etc. Control Act; Article 325 of the Criminal Procedure Act

Defendant

Defendant

Lee Dong-soo et al.

Republic of South and North Korea Attorney

Daejeon District Court Decision 2014Ma2327 Decided October 16, 2014

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

The defendant has the right to remove illegal banner from himself or there was a justifiable reason to believe that he has the right to remove it, and his act is a justifiable act permissible by social norms as a public official. Thus, the defendant's act is not a crime or illegal, or at least when there is a justifiable reason to believe that it does not constitute a crime under Article 16 of the Criminal Act.

B. Unreasonable sentencing

The sentence of the court below (2 million won of fine) is too unreasonable.

2. Determination

A. Summary of the facts charged

The Defendant, while serving as a member of the ○○ △△△ Council from July 2010 to June 4, 2014, is a person who applied for a candidate holiday at the City in order to leave the ○○○ Do Council (Sim 1, 2, 3, and 5 districts of △△△△△), in the sixth local election implemented on June 4, 2014.

On the other hand, in the election district in which the Defendant filed an application for a competition in which Nonindicted 1 and Nonindicted 2 applied for the competition in addition to the Defendant, Nonindicted 1 and Nonindicted 2, in addition to the Defendant, they applied for the competition of the candidate at the time of the close of the place of the auction, and Nonindicted 1 and Nonindicted 2 among the competitions with the Defendant, installed the advance polling promotion banner in their own name in the constituency, thereby damaging the banner.

On April 5, 2014, the Defendant: (a) around 20:45 on April 2014, 20: (b) around 11, 200 won of the advance polling banner installed by Nonindicted Party 2, the Defendant recommended the victim Nonindicted Party 2 to cut the banner on the floor by using improvement in which Nonindicted Party 2 prepared for the advance polling in the name of the victim Nonindicted Party 2, located at ○○○○ △△ apartment street located in △△△△△△△△ apartment, and had the banner cut off on the floor; and (c) from that time, up to 21:30 of the same day, the Defendant damaged the total market value of the banner owned by the victims by encouraging the victim Nonindicted Party 2 to cut off one set of KRW 840,00 at the market value of the advance polling banner installed by Nonindicted Party 2, the victim Nonindicted Party 1, and caused damage to the victim’s total market value of KRW 328,200,000.

B. The lower judgment

In light of the following circumstances, the court below determined that the defendant's act of removing illegal banner is not punishable when there is no evidence to acknowledge that the defendant has an administrative authority to remove illegal banner, and further, Article 16 of the Criminal Act provides that his act of misunderstanding that his act does not constitute a crime under the law does not mean a simple legal site, and it does not mean that it is generally a crime, but it is generally a crime, but it is recognized that his act does not constitute a crime under the law, and there is a justifiable reason in recognizing that he does not constitute a crime (see Supreme Court Decision 2005Do8074, Apr. 27, 2006). The following circumstances in the records are as follows: (a) damage only to placards installed by the defendant and the competition with the defendant at the time of each of the crimes of this case; (b) the defendant's own request for removal of illegal banner continuously at the competent office; and (c) there is no legal ground to support the defendant's authority before the removal of it.

(c) Party inquiry team;

In light of the various circumstances revealed by the court below, the defendant cannot be deemed to have the right to remove illegal placards, and the legitimacy of the motive or purpose can be recognized regarding the removal of the banner of this case, but it is difficult to deem that the removal of the banner of this case satisfies the requirements such as urgency and any supplementary means or method other than the act, and thus does not constitute a justifiable act.

However, in full view of the following circumstances acknowledged by the record, it is reasonable to view that the Defendant, at the time of removal of the illegal banner of this case, knew that his act does not constitute a crime as permitted by the law, and there was a justifiable reason to perceive it as such.

1) Article 27(1) of the Ordinance on the Management of Outdoor Advertisements, etc., (wholly amended by Ordinance No. 1206, Jul. 29, 2013; hereinafter “instant Ordinance”) which was in force at the time of the instant case, provides that “The head of the Gu may compensate individuals, corporations, private organizations, etc. that have collected illegal advertisements in cash or in kind.” Article 27(2) of the same Ordinance provides that “The procedures and detailed criteria for compensation shall be determined by the head of the Gu separately.” Article 27(1) and (2) of the instant Ordinance is understood to mean that an individual may remove illegal advertisements on the premise that the individual can remove it. Accordingly, it is understood that the individual may compensate for the illegal advertisements removed by the ○○○ Metropolitan Government △△△△△△△△△△ Office.

2) From 2012 to 2012, the Defendant, together with members of the Society for a Better Tomorrow (non-governmental organizations located in ○○○○○○ Do), removed illegal banner (a banner not attached to the designated bulletin board managed by local government), posted a photograph of the removed banner or a writing containing his/her activities on his/her own caroto Ri (Evidence No. 118-121 of the Evidence No. 118-1 of the Evidence No. 1), and removed illegal banner together with the public officials in charge. The Defendant brought the illegal banner individually removed into the ○○ △△△△△△△△△△△△△△△△△△△△△△△△△△ (the result of inquiry into the △△△△△△△△△△△△△△).

3) Around April 2014, the Defendant also requested Nonindicted 3, the head of ○○○○○○○○○○, to remove the illegally installed voting promotion banner. Accordingly, the public official in charge of ○○○○○○○○○○○ Office removed the voting promotion banner installed illegally on April 6, 2014 (the result of inquiry into the fact-finding with the ○○○○ Metropolitan City Office).

4) As part of the street cleaning environment campaign, the head of ○○ Metropolitan City △△△△△△△ recognized time of volunteer activities to individuals participating in the removal of illegal placards, and around June 2015, based on the instant ordinance, he/she decided to compensate for a certain amount of money to individuals who collected advertisements (such as leaflets and posters, etc., but excluding placards, etc.) posted on the roadside and side streets, etc. without permission, and promoted the same (No. 4).

5) As stated in the facts charged, placards destroyed by the Defendant were illegal placards not attached to the designated bulletin board managed by the local government, and Nonindicted 2 and Nonindicted 1 were illegally installed with the aforementioned illegal banner, and thus, was subject to a disposition of a fine for negligence in accordance with Article 20 of the Outdoor Advertisements, etc. Control Act.

6) Under the instant ordinances, there is no provision that restricts the types of illegal advertisements for which the head of the Gu pays compensation, and there is no circumstance that there was any legal dispute regarding the Defendant’s act of removing an illegal banner individually prior to the instant case, or that the Defendant was accused of criminal charges.

7) In the case of an illegal banner not attached to the designated display stand, it may harm the landscape, interfere with pedestrians or drivers’ view, causing accidents. Although the Defendant’s removal of the banner, it appears that the Defendant’s primary intent at the time is to remove the illegal banner installed in violation of the Outdoor Advertisements, etc. Control Act.

3. Conclusion

Since Defendant’s appeal is well-grounded, without examining the Defendant’s assertion of unfair sentencing, the lower judgment is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the following judgment is rendered again through pleading.

【Discretionary Judgment】

The summary of the facts charged against the defendant is as described in subparagraph 2-A(a).

This constitutes a case that does not constitute a crime as described in Article 2-3(c) of the Criminal Procedure Act. In accordance with the former part of Article 325 of the Criminal Procedure Act, the defendant is acquitted, and the summary of the judgment against the defendant is publicly notified in accordance with Article 58(2) of the Criminal Act.

Judges Yellow Pyeong (Presiding Judge)