Defendant 1 and one other

Prosecutor

Maximum Republic of Korea

Attorney Park Jin-young (National Assembly for the defendant)

Suwon District Court Decision 2008 High Court Decision 2413 Decided December 4, 2008

The judgment of the court below is reversed.

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

In the event that the Defendants did not pay the above fine, the Defendants shall be confined in the Labor House for the period calculated by converting the amount of KRW 50,000 per day into one day.

1. Summary of grounds for appeal;

Since the defendants were in close vicinity to the building of this case, and there is no person to follow it, and thus, it constitutes the summary of the above building managed by the victim. Thus, even though the facts charged of this case against the defendants can be sufficiently recognized, the judgment of the court below which acquitted the defendants, was erroneous in the misapprehension of facts or by misapprehending the legal principles as to the crime of intrusion upon residence, and thereby affecting the conclusion of the judgment.

2. Determination

A. Summary of the facts charged in this case

In order to have the victim take photographs of the place where the victim was used as well as a stable in a state where there is no appraisal, such as filing a lawsuit several times as a problem of traffic with the victim, and to report the illegality to the related agency and to the victim's disadvantage. On May 22, 2008, in order to have the victim's residence at the location of the victim's residence in Overcheon-si (hereinafter omitted), around 17:50 of the victim's residence and the livestock shed operated by the defendant 1 without the victim's permission, and enter the entrance of the victim's residence at the entrance of the (vehicle number omitted) 1 ton of the victim's residence and the front of the stable, which is the building, and after the defendant 2 went into the entrance of the victim's residence, he jointly intruded the victim's building by jointly taking photographs with the victim's residence

B. The judgment of the court below

원심은, 피고인들이 위 봉고차량을 타고 피해자의 사전 허락 없이 시멘트 포장 소로를 통하여 피해자의 주거 옆을 지나 피해자의 축사 앞 공터까지 들어간 사실, 피고인들이 차량을 타고 들어간 통로나 축사 앞 공터 등에는 이 사건 건조물의 위요지임을 알 수 있도록 문이나 담이 설치되어 있지는 않고 단지 멀리 떨어져 있는 소로 입구 옆쪽에 ‘관계자 외 출입금지’라는 팻말이 세워진 사실을 인정한 다음, 이러한 사실들에 비추어 보면 검사가 제출한 증거들만으로는 피고인들이 피해자가 관리하는 건조물에 침입하였다고 보기에 부족하고 달리 이를 인정할 만한 증거가 없다는 이유로, 피고인들에 대하여 무죄를 선고하였다.

C. The judgment of this Court

In the crime of intrusion upon residence, a structure, which is the object of the act of intrusion, refers to a structure composed of the main wall, columns, roof, or ceiling, where a person can remove or enter. It does not simply refer to a structure itself, but it includes the above summary. However, it is clearly revealed that the manager, as the surrounding land adjacent to the structure, has provided the land for the use of the structure by installing a door and fence, etc. on the boundary with the outside (see Supreme Court Decisions 2003Do6133, Jun. 10, 2004; 2005Do5351, Oct. 7, 2005). In addition, intrusion refers to a structure sufficient to enter the building against the will of the resident or the addressee, and it is not necessary to receive any resistance, and even if it is generally necessary, the manager can prohibit or restrict the entry, and thus, it constitutes the crime of intrusion against the intent of the Supreme Court (see Supreme Court Decision 2003Do3816, Mar. 16, 2008).

In light of the above legal principles, since the defendants were unable to enter the above residential premises by lawfully adopting and using the evidence and the result of inspection on the site of the above building, the victim's act of entering the above residential premises is located on the ground of the non-indicted 100 square meters owned by the victim (hereinafter "the above residential site is located on the right side of the road"), the victim's act of removing the above residential building from the entrance and exit of the above residential premises is not only on the ground of the non-indicted 374 square meters away from the entrance and exit of the above residential premises, but also on the ground of the non-indicted 2's residential building's entrance and exit to the above residential premises. The victim's act of removing the above residential premises from the above residential premises to the above residential premises is still at the entrance and exit of the above residential premises, and it is still at the entrance and exit of the above residential premises to the non-indicted 1, which are still at the front of the above residential premises.

Therefore, the judgment of the court below which acquitted the Defendants of the facts charged in this case is erroneous in the misapprehension of legal principles as to the crime of intrusion upon residence, thereby affecting the conclusion of the judgment. Thus, the prosecutor's allegation of mistake or misapprehension

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

In order to have the victim take photographs of the place where the victim was used as well as a stable in a state where there is no appraisal, such as filing a lawsuit several times as a problem of traffic with the victim, and to report the illegality to the related agency and to the victim's disadvantage. On May 22, 2008, in order to have the victim's residence at the location of the victim's residence in Overcheon-si (hereinafter omitted), around 17:50 of the victim's residence and the livestock shed operated by the defendant 1 without the victim's permission, and enter the entrance of the victim's residence at the entrance of the (vehicle number omitted) 1 ton of the victim's residence and the front of the stable, which is the building, and after the defendant 2 went into the entrance of the victim's residence, he jointly intruded the victim's building by jointly taking photographs with the victim's residence

1. The court below's oral statement by the non-indicted witness

1. A report on on-site inspection of a political party;

1. Some police interrogation protocol against the Defendants

1. The protocol of interrogation of the police by the Nonindicted Party

1. The investigation report (Attachment of photographs);

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

Article 2(2) and (1)1 of the Punishment of Violences, etc. Act, and Article 319(1) of the Criminal Act.

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code

Judges Kim Ho-ho (Presiding Judge)