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The judgment below
The part damaged for public goods is reversed, and that part of the case is remanded to the Seoul Eastern District Court.
Reasons
The grounds of appeal are examined.
1. The summary of the facts charged regarding damage to public goods in the judgment below is as follows.
On January 17, 2019, at around 23:30, the defendant's house located in Songpa-gu Seoul, the defendant demanded a drinking test to B, the year F belonging to Seoul Songpa-gu Police Station E, the defendant's annual leader, and reported that slope G uses police cell phones in order to take the situation, and caused damage to the defendant's equipment used by public offices, thereby impairing its utility.
2. The court below reversed the first instance court's conviction and acquitted the above charged facts.
In other words, while recognizing the fact that the Defendant actively deprived of PDA and damaged it, the lower court determined that the Defendant’s act was “an act to defend the current unfair infringement caused by police officers’ unlawful performance of official duties (e.g., entry into a residence by illegal search and demand for measurement of illegal drinking”), and thus, the illegality as a self-defense should be avoided, by deeming it as an act of considerable nature.” Meanwhile, even if it is deemed as excessive self-defense in excess of reasonableness, at the time, a police officer illegally entering the residence was in an unstable situation in which the police officer demands a drinking measurement at night, and the Defendant was an act conducted under the influence of alcohol at the time when the Defendant was under the influence of alcohol, and thus, is held liable in accordance with Article 21(3) of the Criminal Act.”
3. However, the lower court’s determination is difficult to accept for the following reasons.
In order to establish self-defense, the act of defense must be socially reasonable, taking into account all specific circumstances, such as the type, degree, method of infringement, and type and degree of legal interest to be infringed by the act of defense, etc. In addition, the act of defense as a requisite for establishing self-defense is not only purely passive defense.