[1] The meaning of "act which does not violate social norms" under Article 20 of the Criminal Code, and the elements for establishing a justifiable act

[2] In a case where Gap corporation subcontracted the manufacture and installation work of public kindergarten facilities to the defendant, but the defendant was indicted on charges of damaging goods used by public offices by breaking the protection zone, which is part of the play facilities, in the knife of the defendant's refusal of the direct payment of the construction cost, and then removing part of the play facilities, the case holding that the court below erred by misapprehending legal principles as to the act of damaging public goods, even though the defendant's above act cannot be deemed as reasonable means and method, or it cannot be deemed as an urgent and inevitable means to exercise the right of retention for securing the construction cost, even though the defendant's right to claim a direct payment of the construction cost, and the right to retention for securing the construction cost was not a legitimate lien holder of the play facilities

[1] Article 20 of the Criminal Act / [2] Articles 20 and 141 (1) of the Criminal Act

[1] Supreme Court Decision 2002Do5077 Decided December 26, 2002 (Gong2003Sang, 555), Supreme Court Decision 2014Do7302 Decided September 4, 2014

Defendant

Prosecutor

Chuncheon District Court Decision 2015No424 decided January 26, 2017

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court.

The grounds of appeal are examined.

1. “Act which does not contravene social norms” as prescribed by Article 20 of the Criminal Act refers to an act permissible in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Whether certain act is a legitimate act that does not contravene social norms and thus, should be determined individually and reasonably under specific circumstances. To recognize such legitimate act, the following requirements should be met: (a) legitimacy of the motive or purpose of the act; (b) reasonableness of the means or method of the act; (c) balance between the benefits of protection and infringement; (d) balance between the benefits of infringement; (v) urgency; and (e) supplementary nature that there is no other means or method than the act (see, e.g., Supreme Court Decisions 202Do5077, Dec. 26, 2002; 2014Do7302, Sept. 4, 2014).

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following facts.

A. On December 31, 2012, a public kindergarten, a contracting officer of the ○○○ Kindergarten entered into a service agreement with Nonindicted Co. 1 Company (hereinafter “Nonindicted Co. 1”) with the content that the contract amount is KRW 280,000,000 for the contract period and the contract period is from December 31, 2012 to March 10, 2013, Nonindicted Co. 1 made and installed a kindergarten play facility (hereinafter “instant play facility”).

B. After that extension, the contract period of the said construction was extended, and Nonindicted Company 1 subcontracted the Defendant, on September 3, 2013, with the consent of the public official in charge of ○○○ Kindergarten, to KRW 160,00,000 for the manufacture and installation of the instant play facilities.

C. By September 17, 2013, the Defendant continued to perform approximately 90% of the subcontracted project, and requested Nonindicted Company 1 to pay KRW 70,000,000 out of the construction price. However, on September 17, 2013, the ○○ Kindergarten that inspected the origin rate of the said subcontracted project paid only KRW 43,00,000 for progress payment to Nonindicted Company 1. Nonindicted Company 1 did not pay the Defendant the remainder of the construction price exceeding KRW 80,000,000 on the same day to the Defendant on the grounds of settlement, such as additional payment of KRW 30,000,000 on October 2013.

D. Around October 2013, the Defendant suspended the remaining construction work, and demanded the head of the administrative office of ○○○ kindergarten, a principal contractor, to pay the construction cost directly to Nonindicted Party 2, etc. from around December 2013. Nonindicted Party 2, etc. refused the Defendant’s request on the ground that the Defendant could not directly pay the construction cost if he did not receive a written consent from Nonindicted Company 1 to make a direct demand for payment. On January 27, 2014, Nonindicted Party 1 paid the second progress payment of KRW 48,00,000 to Nonindicted Company 1.

E. From January 28, 2014 to November 4, 2014, the Defendant demanded the ○○ Kindergarten to find out the instant playground and pay the construction cost, and accordingly, reached five times only when the police officer reported and dispatched the instant playground. The Defendant, on the ground that “The construction of the instant playground is not completed and it shall not be possible to deliver the instant playground facilities until the payment of the construction cost is made” to Nonindicted 2, etc., on the ground that “The Defendant: (a) was placed in the vicinity of the instant playground and prevented the entry and use of the instant playground facilities by placing Nonindicted 2, etc. in the direction that it is dangerous from January 28, 2014 to July 2014; (b) the Defendant did not possess the instant playground facilities.”

F. In such process, on April 7, 2014, the Defendant removed the protection belt, which is part of the instant play facilities, as indicated in the instant facts charged, in a knife. On July 10, 2014, the Defendant, along with the Defendant, removed part of the instant play facilities, and made it impossible for the Defendant to use the instant play facilities by causing the persons related to the installation company, who visited with the Defendant, to remove the part of the instant play facilities, to gather them in one playground. As above, some play facilities removed were left unattended on the playground by November 2014.

G. On June 20, 2014, the Defendant threatened Nonindicted 2 on June 20, 2014, as a matter of the construction cost regarding the instant play facilities, that Nonindicted 2 would be influent to the facilities of the ○○○ Kindergarten. On November 5, 2014, the Defendant obstructed the legitimate execution of duties regarding the operation of the kindergarten by assaulting Nonindicted 2, 2’s handbage and flaps, etc., thereby interfering with the legitimate performance of duties regarding the operation of the public official. On August 25, 2014, the Defendant threatened Nonindicted 2 by telephone.

3. We examine these facts in light of the legal principles as seen earlier.

First of all, the lien requires the lien holder to possess the article, and the defendant appears to have suspended construction around October 2013 and did not possess the play facilities of this case. Thus, the lien regarding the play facilities of this case cannot be deemed to have been acquired.

Furthermore, even if the defendant has the right to claim direct payment of the construction price with respect to the ○○○ Kindergarten, and the defendant had the need to secure the claim for the construction price as the legitimate lien holder of the instant play facilities, the defendant's act of destroying the play facilities of this case and removing part of the play facilities and making it unusable for a long time by moving it to the playground cannot be deemed reasonable in terms of the method and method. It is difficult to view that the defendant's act of causing damage and removal was an urgent and inevitable means in exercising the right to retention for securing the construction price.

4. Nevertheless, the lower court found the Defendant not guilty of the damage to public goods out of the facts charged in this case on the ground that the Defendant had justifiable grounds to believe that the right of retention was established, by exercising the right of retention, to preserve the right to demand direct payment of the construction cost against the ○○ kindergarten. In so doing, the lower court erred by misapprehending the legal doctrine on justifiable act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

Meanwhile, although the prosecutor appealed to the entire judgment of the court below, there is no specific reason in the petition of appeal as to the guilty portion, and the appellate brief does not contain any grounds for objection.

5. Therefore, the part of the judgment of the court below that damages public goods should be reversed. Since the above part shall be sentenced to one punishment in relation to obstruction of performance of official duties and intimidation as found guilty and concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below is reversed in its entirety, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by

Justices Kim Jae-hyung (Presiding Justice)