In a case where the defendant who is the representative of a clan A was prosecuted for damage to the property by stating the phrase that it is a clan property on the pine tree owned by the clan using a racker for the purpose of preventing the defect in removing the pine trees planted in the forest and fields, even though he was in dispute over the ownership of the forest and land Eul, the case holding that the defendant's act constitutes a justifiable act or self-help; and

In a case where the Defendant, the representative of the clan A, was indicted for damage to property by stating the phrase “A” to the effect that it is a clan property by using a 31 week for the purpose of preventing any defect in removing the pine trees planted in the forest and fields, the case holding that the Defendant’s act constitutes a justifiable act as provided in Article 20 of the Criminal Act or a self-help act as provided in Article 23 of the Criminal Act, in full view of the following: (a) there was room for dispute over the ownership of pine trees, such as disputes over the ownership of the forest where pine trees are planted and the scope of the right to grave base possessed by the clan A; (b) the clan was subjected to a decision on the provisional disposition prohibiting removal of pine trees, etc. against the Plaintiff; and (c) once pine trees were removed out against the provisional disposition, it is difficult for the Defendant to restore it to its original state due to the bona fide acquisition by the transferee, with the death of pine trees, etc.; and

Articles 20, 23, and 366 of the Criminal Act; Article 325 of the Criminal Procedure Act

Defendant

Defendant

Sung-do et al. and one other

Law Firm Woo, Attorney Doh-kin

Changwon District Court Decision 2015Gohap179 decided November 19, 2015

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment shall be published.

1. Summary of the facts charged

Around September 15, 2013, the Defendant, in the Sinnam-gun ( Address 1 omitted), around 15, 2013, indicated that the victim was a clan property in the 31 week owned by the victim with a view to preventing any defect in the situation in which the victim tried to remove the pine trees planted in the said forest despite the dispute over ownership with the victim, who is the title holder of the said forest, even though there was a dispute over ownership.

2. Summary of grounds for appeal;

This case's pine tree is owned by the defendant's representative of a clan (hereinafter "the clan") and is not owned by the victim. Even if the novel tree is owned by the victim, the act of the defendant with the indication that it is a clan property in order to prevent the victim from taking out the pine tree against the provisional disposition prohibiting taking out the pine tree received by the above clan does not have the intention of damage, and it is justified as it does not violate the self-help or social rules. Nevertheless, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in the misapprehension of legal principles and misapprehension of legal principles.

3. Determination

A. “Self-help” under Article 23 of the Criminal Act refers to an act that is reasonable to avoid the impossibility or significant difficulty of executing the claim when it is impossible to preserve the claim by legal procedure (see, e.g., Supreme Court Decision 2006Do9418, Mar. 15, 2007). “Act that does not violate social rules” under Article 20 of the Criminal Act refers to an act that is acceptable in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Thus, if a certain act satisfies the requirements such as the motive or justification of the act, the justification of the act, the means or method, the reasonableness of the means or method, the balance between the benefits of protection and the benefits of infringement, the balance of the benefits of infringement, and the supplementary nature that there is no other means or method other than the act, it constitutes a justifiable act (see, e.g., Supreme Court Decision 2004Do8530, Feb. 25, 2005).

B. The following circumstances acknowledged by the evidence duly adopted and examined by the court below and the trial court: ① there was room for dispute over the ownership of pine trees per se due to disputes over the ownership of pine trees planted and the problems on the scope of the right to grave base held by the clan; ② Nevertheless, the victim’s act of excavating and selling pine trees was conducted with a decision of prohibiting removal of pine trees, etc. against the victim at the time of the crime of this case (C). ③ Nevertheless, if pine trees were removed out against provisional disposition, it can be difficult to restore it to its original state due to the assignee’s bona fide acquisition, with the death of pine trees, etc. ④ It is impossible or difficult to protect the victim’s legal interests by classifying them into the following circumstances: (4) It is difficult to view that the victim’s act of claiming removal of pine trees constitutes an act of infringement of the legal interests and interests of the victim, and thus, it is difficult to view the victim’s act of infringement of the legal interests and interests of the victim as an act of infringement of the victim’s right to claim removal of pine trees, etc.

4. Conclusion

Therefore, since the appeal by the defendant 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.

Re-written Judgment

The summary of the facts charged in this case is as stated in Paragraph 1, and since it falls under a case that does not constitute a crime as stated in Paragraph 3, it is so decided as per Disposition by the assent of all participating Justices on the bench in accordance with the former part of Article 325 of the Criminal Procedure Act and in accordance with Article 58(2) of the Criminal Act.

Judges Cho Sung-hoon (Presiding Judge) Constitution of Dang-hun (Presiding Judge)

1) The instant provisional disposition order was revoked on February 21, 2014, which was subsequent to the instant case, as an objection.