2013No1175 Violation of the Punishment of Minor Offenses Act

A

Defendant

Strengthening consecutive years, and Lee Jae-jin (public trial)

Attorney D

Law Firm B

Attorney C

Seoul Western District Court Decision 2013 High Court Decision 160 Decided October 10, 2013

July 18, 2014

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

The Defendant, as a social and political artist, did not have any intent to engage in the work for the socially and political people, and did not harm the public order. In light of such intent, criminal time, behavior attitude, etc., the Defendant’s attachment of the instant posters did not constitute an act that does not constitute an element of Article 3 subparag. 13 of the former Punishment of Minor Offenses Act, but did not constitute an act that does not constitute an element of Article 3 subparag. 13 of the former Punishment of Minor Offenses Act. However, the lower court erred by misapprehending the legal doctrine.

The Defendant’s act of attaching the instant posters is an act of being protected by the freedom of expression, and according to the purport of Article 4 of the former Punishment of Minor Offenses Act, compared with the degree of realizing the Defendant’s freedom of artistic expression through the attachment of the instant posters and infringement of the legal interest that is the usefulness of the instant posters, the act does not reach the degree of infringing the utility of the instant act, and the freedom of artistic expression is a fundamental right protected by the Constitution. In full view of the following, in light of the fact that the Defendant’s act is an act of attaching the instant posters, which is an act of being protected by the freedom of expression, and the degree of infringement of the legal interest that is the utility of the instant posters, such as hushes, which is infringed thereby, the freedom of expression does not reach the degree of infringing on the utility of the instant act, and the part of the “bridges and advertisements, etc.” in Article 1 subparag. 13 of the former Punishment of Minor Offenses (wholly amended by Act No. 11401, Mar. 2

2. Relevant provisions;

A. The provisions of the former Punishment of Minor Offenses applicable to this case are as follows:

Article 1 of the former Punishment of Minor Offenses Act (wholly amended by Act No. 11401, Mar. 21, 2012);

Any person who falls under any of the following subparagraphs shall be punished by a fine not exceeding 100,000 won, by penal detention, or by a minor fine:

Article 1 (Purpose) The purpose of this Act is to protect the freedom and rights of citizens and to contribute to maintaining good order by prescribing matters necessary for the kinds and punishment of minor offenses.

3. Determination

A. Whether the Defendant’s act of attaching the pertinent posters constitutes a summary of Article 1 subparag. 13 of the former Punishment of Minor Offenses Act

However, the Punishment of Minor Offenses Act was enacted for the purpose of maintaining the public order in the society, and the term "in this case," as provided in No. 13 of the former Punishment of Minor Offenses Act (hereinafter referred to as "the provisions of this case"), has the prior meaning of "maat as it does not think of it early," and the provisions of this case limit the object of the act such as without permission to "any other person or organization's office or other structure," and it can be interpreted as "unfortunately or excessively" without permission, and it can be interpreted as "any other person or organization's commercial act," "any other person or organization's commercial act," "any other person or organization's advertisement, etc.," and "any other person or organization's advertisement, etc.," and "any other person or organization's advertisement, etc., which is widely known" or "any other person or organization's advertisement, etc., which is not "any other person or organization's commercial act," and "any other person or organization's advertisement, etc., which is widely known" or "any".,".

In light of the aforementioned circumstances, the lower court and the first instance court acknowledged by the evidence duly adopted and examined. (3) The posters of this case were produced without commercial advertisements or for profit-making purposes, but they were attached to the housing prices where the Defendant passed by the public so that they can be seen by many people, thereby having the character of objects to widely inform the Defendant’s artistic thoughts and political opinions. (4) The social public order to maintain the provisions of this case includes not only the keeping of the distance for general traffic, but also the property rights of many unspecified people so that advertisements are not attached to the house or structures exposed to the distance for general traffic or advertisements against the will of the owners. (3) The Defendant put 55m in the housing posters of a size without the consent of the owners of the housing, and the Defendant had to put this case into the housing prices of this case, and the Defendant had to put the right to regulate the posters of this case into the housing prices of this case in addition to the above 35m punishment Act, and the Defendant had to put the right to regulate the posters of this case into the housing posters of this case at 50m.

B. Whether the Defendant’s attachment of the instant posters constitutes a justifiable act that does not contravene social norms

1) "Act which does not violate the social rules" under Article 20 of the Criminal Act refers to an act which can be accepted 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 violate the social norms and thus, the illegality should be avoided, based on specific circumstances, and should be determined individually by considering the motive or purpose of the act, the reasonableness of the means or method of the act, the balance between the interests of the third protected interests and infringed interests, the fourth urgency, and the fifth supplementary nature that there is no other means or method other than the act.

2) The Defendant’s act of attaching the instant posters is for the purpose of realizing the Defendant’s freedom of artistic and political expression, and its purpose can be deemed to be legitimate.

However, the aforementioned evidence and the records revealed as follows. ① The Defendant did not obtain prior consent from the owner or resident of the house to be attached before attaching the instant posters. The Defendant’s act of attaching the instant posters does not seem to be impossible to attach the posters only at the place where the Defendant obtained prior consent from the owner or resident in view of the fact that the act was planned and prepared to set a specific date and place. ② The place where the Defendant attached the instant posters is not for attaching the original advertisements, etc., as a string of the house prices, but for which the Defendant’s act of attaching the posters could infringe on the property rights of unspecified persons due to the Defendant’s act of attaching the posters. In full view, the Defendant did not have any way to attach the posters for commercial and commercial purposes, not for commercial purposes, but for artistic political expressions of art, nor for easy for the general public to see that the Defendant’s act of attaching the posters itself was an act of removing the instant posters by using the instant posters or method of removing the instant posters, etc. 1, more easily than for the Defendant’s consent.

Ultimately, Defendant’s act of attaching the instant posters does not contravene social norms.

It does not seem to be the case.

4. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge and the deputy judge

Judges Lee Jin-hee

Judge Choi US-young