Defendant 1 and one other

Defendants

Edials (prosecutions) and public trials (public trials)

Law Firm Daeho, Attorney Kim -soo

Seoul Central District Court Decision 2014 High Court Decision 676 Decided January 15, 2015

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misapprehension of legal principles

The wall of a common ditch on the facts stated in the judgment below is not a bearing wall, but a repair and alteration of not more than 30 square meters is merely a large-scale repair under the Building Act. Nevertheless, the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby finding the Defendants guilty.

B. Unreasonable sentencing

The punishment of the court below against the Defendants (the fine of KRW 5,00,000) is too unreasonable.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

The term "large-scale repair" under the Building Act means "repair, alteration, or extension of the structure or external form of columns, beams, bearing walls, main stairs, etc. of a building, which is prescribed by Presidential Decree" (Article 2 (1) 9 of the Act), and a person who intends to conduct large-scale repair shall obtain prior permission from the competent administrative agency (Article 11 (1) 9 of the Act). On the other hand, with regard to the scope of large-scale repair, the term "those prescribed by Presidential Decree" under Article 2 (1) 9 of the Act means "extension or dismantling, or repairing or altering the wall area of at least 30 square meters," which does not fall under extension, alteration, or reconstruction (Article 3-2 subparagraph 1 of the Enforcement Decree of the Building Act).

In full view of all the evidence duly adopted and examined at the court below, the left-hand wall of the utility tunnel of this case is a partition wall for dividing the internal space of the building. However, the right-hand wall is a valid wall for the building structure and can be recognized as a "proof wall" for detecting or conveying the power of the gravity direction, and even if the wall is not the whole, it is reasonable to view that both sides entirely commonly pass through and use the relevant part as a passage is not the "repair or alteration" as claimed by the defendants, but the "deconstruction" of the bearing wall. Therefore, the judgment of the court below convicting the facts charged of this case is just, and there is no error of mistake of facts or misapprehension of legal principles as alleged by the defendants.

B. Determination on the assertion of unfair sentencing

In full view of all the circumstances that form the conditions for sentencing as indicated in the record, including the circumstances after the commission of the crime, the method and motive of the crime, the motive of the offense, the degree of the offense, and the consequences of the offense were corrected, etc., the lower court’s punishment against the Defendants is too unreasonable.

3. Conclusion

Therefore, the defendants' appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since there is no reason to do so.

Judges Kim Jong-il (Presiding Judge) Kim Jong-ho