[1] The case holding that apartment buildings planned to be removed from a reconstruction project and all of the occupants do not live at any time can also be the object of the crime of causing property damage

[2] In a case where a member submitted a written consent to consent of the members of a reconstruction association as stipulated in the articles of association, and a member has a duty to comply with the removal of the building of the association, whether the reconstruction association received prior consent to remove the building in its own capacity without complying with the legal procedure (negative)

[1] The case holding that even if an apartment is expected to be removed from a reconstruction project and all of the occupants are in secret without any residence, it cannot be said that the objective nature of the apartment cannot be used as a residential purpose, or that it is an object of the crime of causing property damage because it cannot be said that it is an object of the crime of causing property damage, even if it is an object of the objective nature of the apartment.

[2] Even though a rebuilding association's rules or articles of association stipulate that "a union may remove buildings within its zone as a project implementation," and that "a union member shall have the obligation to comply with their removal," and that "a union member shall consent to all the contents stipulated in the articles of association, such as the rights and obligations of the union," while joining the rebuilding association, the union member expressed his/her intent to bear an order to remove the building. Thus, where a union member refuses to perform his/her duties, the rebuilding association should seek the performance of his/her duties through legal procedures, such as filing a lawsuit seeking evacuation, and the union member shall not be deemed to have given prior consent to the submission of the above written consent."

[1] Article 366 of the Criminal Code / [2] Article 24 of the Criminal Code

Defendant

Defendant

Law Firm Barun, Attorneys Lee Ho-soo et al.

Seoul Central District Court Decision 2007No450 Decided June 14, 2007

The appeal is dismissed.

1. If an article can be used for its original purpose of use, or can be used even for other purposes, it can be an object of the crime of causing property damage as it has property value or utility (see Supreme Court Decisions 78Do2138, Jul. 24, 1979; 93Do2701, Dec. 7, 1993, etc.).

According to the records, each apartment of the victims of this case was scheduled to be removed by the reconstruction project at the time of this case, and all owners and tenants were influence without moving to another place. However, there is no evidence to acknowledge that the objective nature of each apartment of this case itself could not be used as a residential purpose, which is its original purpose, and the victims continue to exercise their ownership by way of refusing to register the trust to the distribution-based 2 apartment complex reconstruction project association (hereinafter "association of this case") and to refuse to register the trust with the owner of the distribution-based 2 apartment complex reconstruction project association (hereinafter "association of this case"), each apartment of this case can not be deemed to have become an object of the property damage and damage. Thus, each apartment of this case is an object of the property damage.

In the same purport, the court below's decision that each of the above apartment units of the victims constitutes the object of the crime of causing property damage is just and acceptable, and there is no violation of the legal principles as to the object of the crime of causing property damage, as otherwise alleged in the ground of appeal.

2. A rebuilding association's rules or articles of association stipulate that "a union may remove buildings within its zone as a project implementation," and that "a union member has the obligation to comply with such removal," and that "a union member has consented to all the contents stipulated in the articles of association, such as the rights and obligations of the union" while joining the rebuilding association, the union member merely expressed his/her intent to bear an order to remove the building. Thus, where a union member refuses to perform his/her duties, the rebuilding association should seek the performance of his/her duties through legal procedures, such as a lawsuit seeking evacuation, and it cannot be deemed that the union member has consented to the submission of the above written consent even in advance of "a union's removal of the building by its own means without following legal procedures, even if the union member does not voluntarily order the building."

According to the records, the victims submitted a written consent that they agreed to all the contents of the articles of association of the association when they join the association of this case as members, and the articles of association of the association of this case provide that the association of this case can remove the buildings and the members shall be obliged to comply with the removal. However, the victims also knew that the victims refused to perform their duties to register trust and explain each apartment as they oppose the management and disposition plan as the usual allocation of new apartment is modified disadvantageously due to the changes in the contents of the business plan after the change in the contents of the new apartment, and the sale price increases. Thus, the victims submitted the above written consent to the association of this case, and they cannot be deemed to have consented to their removal in advance, and even if the victims participated in the construction of new apartment after joining the association of this case or participated in the construction of new apartment by lot after the removal of this case, they cannot be deemed to have consented to removal at the time of this case.

In the same purport, the court below is just and correct to determine that the victims' consent to the removal of each apartment building explicitly or implicitly is not possible on the grounds that the contents of the articles of association of the association, the submission of written consent of the victims, the subsequent application for parcelling-out, the drawing of the same unit and unit, the participation in the parcelling-out contract, etc., as argued by the defendant, and there is no violation of the rules of evidence or misapprehension of the legal principles as to the consent of the victims,

In addition, as long as the victims cannot be deemed to have consented to the removal of this case, we cannot accept the allegation in the grounds of appeal on a different premise that “the withdrawal of consent with the intent of the victims to only take rights and not perform obligations despite the consent by submitting a written consent to the association of this case shall not be permitted because it constitutes a violation of the good faith principle or an abuse of rights.”

3. The court below rejected the defendant's allegation of illegality due to the defendant's emergency evacuation and legitimate act on the ground that the removal of this case cannot be deemed as an act of considerable importance to the extent that the defendant's act of removing this case constitutes an act of emergency evacuation or legitimate act, even though the defendant's act of removing this case was aimed at promoting the overall interests of the union members as the president of the association of this case, even though the association of this case was dismissed at the court of first instance, and the above case was pending in the court of appeal, even though it did not correspond to the above case's act of removing this case. In light of the records, the court below's determination is just and acceptable, and there is no error in the misapprehension of legal principles as to emergency evacuation and legitimate act as alleged in the grounds of appeal.

4. The court below rejected the defendant's assertion of liability as a result of the non-existence of the defendant's expectation, on the ground that the defendant could not expect the defendant to go to a legitimate act at the time of the removal of this case. In light of the records, the judgment of the court below is just and acceptable, and it cannot be said that there is an error in the misapprehension of legal principles as to the possibility of expectation, as otherwise alleged in the grounds of appeal.

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

Justices Kim Ji-hyung (Presiding Justice)