[1] Whether punishment may be imposed by applying Article 167(2) of the Criminal Act in a case where a person sets fire to and burns an “unclaimed thing” and thereby causes public danger (affirmative)

[2] The case holding that the crime of fire-prevention of general goods is established in a case where recycled goods, garbage, etc. put in the vicinity of the utility poles cause public danger on the street

[1] Article 167(2) of the Criminal Act provides that when an article which is the object of a fire belongs to the possession of one's own property, it shall be mitigated and punished. The crime of fire prevention shall be deemed to be protected by the first law of the public safety but the second one may be deemed to protect an individual's property right. The same applies to the prevention of a fire in the case of an article without the owner's own property right, and the acquisition of ownership in the case of possession of an article without the owner's own property right (Article 252 of the Civil Act) in light of the fact that there is room to regard the act of fire in an article without the owner's own property as the possession of the article without the owner's own intention (Article 252 of the Civil Act), if an article without the owner's own property is destroyed by a fire without the owner's own property and thereby causing public danger, it shall be punished by applying Article 167(2) of the Criminal Act.

[2] The case holding that in case where recycled goods and garbage, etc. are destroyed on the street by setting fire to and from the street on the street, if such recycled goods and garbage, etc. are deemed to correspond to “self-owned things” as stipulated in Article 167(2) of the Criminal Act, and as such, in case where they are deemed to correspond to “non-owned things” under Article 167(2) of the Criminal Act, if they cause damage to the surrounding combustible materials including electric wires, etc., or damage to the public danger that may occur due to wind to move to another place, a general fire-prevention crime is established

[1] Article 167 (2) of the Criminal Code / [2] Article 167 (2) of the Criminal Code

Defendant

Defendant

Attorney Lee Young-hoon

Seoul High Court Decision 2009No912, 1310 (Consolidation) decided July 16, 2009

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal alleging the misapprehension of legal principles as to general crime of fire prevention

Article 167(2) of the Criminal Act provides that when an article which is the object of a fire belongs to the possession of one's own property, it shall be mitigated and punished. The crime of fire prevention is the first legal interest protected by the law of the public safety, but the second one may be deemed to protect an individual's property right. The same applies to the case of harming an article belonging to one's own property in the case of harming an article without the owner's own property right. In light of the fact that there is room to regard the act of harming an article without the owner's own property as the act of acquiring ownership (Article 252 of the Civil Act) in the case of possession of an article without the owner's own property by setting fire without the owner's own intention, the act of harming an article without the owner's own property shall be deemed to be the act corresponding to the "object without the owner's own property" and shall be punished by applying Article 167(2) of the Criminal Act.

According to the reasoning of the judgment below, the court below acknowledged the establishment of a general crime of fire prevention as stipulated in Article 167 (2) of the Criminal Act, on the ground that the defendant's act of putting recycleds and garbage in the vicinity of the telegramss, caused danger to the public by putting a fire into a fire by gathering flames, and putting in a combustibilitys, and on the premise that the above "recyclings, garbage, etc." should be deemed as a non-owner's own goods as stipulated in Article 167 (2) of the Criminal Act. In light of the weather conditions, surrounding circumstances, and height of flames, etc. as stated in its reasoning, the court below acknowledged that the defendant's act of putting fire into a fire, thereby damaging the combustible materials of the surrounding areas, including electric wires, or causing damage to the public by gathering them into another place with wind or by spreading them into another place.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and there is no error in the misapprehension of legal principles as to the establishment of general goods fire prevention.

2. As to the remaining grounds of appeal

In light of the records, the decision of the court below that the defendant did not have or lacks ability to discern things at the time of each of the crimes of this case is proper, and there is no violation of the rules of evidence or misapprehension of the legal principles as to mental or physical disorder.

Meanwhile, under Article 383 subparagraph 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only for a case on which death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, in this case where the defendant was sentenced to a minor sentence, the grounds that the sentencing of the sentence is unreasonable cannot be a legitimate ground for appeal.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)