2017No1143 Damage to public goods, and invasion of a structure

A person shall be appointed.

Defendant

Park Sang-hoon (Criminal Prosecution) and Lee Jong-dae (Public Trial)

Law Firm B

Attorney C

Changwon District Court Decision 2017 High Court Decision 123 decided April 18, 2017

August 24, 2017

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Although the fact-finding and misunderstanding of legal principles as to the damage of an article for public use could not be provided for the original purpose of use, if it does not cause any change in the state of the object itself, it cannot be said that it would be useful. In light of the fact that D’s large-scale photographer (hereinafter “the instant photograph”) has been treated by painting and has no particular difficulty in cleaning or removing garbage, it cannot be said that the Defendant’s own situation of the instant photograph itself was changed, on the ground that he was crypted and spreaded in the instant photograph, and thus, the crime of damage to the article for public use is not established.

2) As to the entry of a building into the National Cemetery of March and 15, 200, it does not specifically prohibit entry into the National Cemetery of March and the 15th National Cemetery of Korea, and it is not clear that the defendant's method of intrusion does not constitute a general permit. Thus, the defendant's act of entering the above Memorial does not constitute an intrusion upon a building

B. Unreasonable sentencing

The punishment sentenced by the court below (the fine of two million won) is too unreasonable.

2. Judgment on misconception of facts and misapprehension of legal principles

A. Summary of the facts charged in this case

The Defendant prepared to do so in advance and possessed Australias, and went in front of the photograph of this case, which was found to be affected by the entrance wall of the 3th and 15th National Cemetery Memorial, through the door door of the 15th National Cemetery Memorial, and was in front of the photograph of this case, which was found to be caused by the entrance wall of the children’s experience center. The Defendant, in front of the photograph of this case, was in front of the photograph of this case, was in front of the entrance wall of the children’s experience center, was in front of the photograph of this case, and then, in the photograph of this case, was invaded into the 3th and 15th National Cemetery Memorial, which was a building, and was used in the said memorial hall.

B. The judgment of the court below as to damage to public goods

The court below found the defendant guilty of this part of the facts charged on the ground that the defendant's cleaning service company's act of breaking up four employees of cleaning service company for about one hour in order to remove the photo of this case, and then cleaning up the photo of this case for about one hour in light of the following circumstances: "The use or utility of the object cannot be used in any way other than the destruction or concealment," which includes not only the case where the object cannot be used in its original intended use but also the case where it cannot be used in a lump sum. The court below found the defendant guilty of this part of the facts charged on the ground that the following circumstances can be acknowledged by the record: (i) the photograph of this case was installed for display inside the National Cemetery of March and 15 National Cemetery; and (ii) the defendant's cleaning service company's staff of cleaning service company's cleaning service company's hard to use the photo of this case for the original purpose of display as a juristic person.

In light of the records, a thorough examination of the evidence duly adopted and examined by the court below, the court below's determination of guilty of this part of the facts charged is just and acceptable, and there is no error of law by misunderstanding facts and by misunderstanding the legal principles, which affected the conclusion of the judgment.

C. The judgment of the court below on the entry of a building into a structure

The lower court found the Defendant guilty of this part of the facts charged on the ground that the crime of intrusion upon a structure was established as long as the Defendant entered the National Cemetery of March and 15th National Cemetery for the purpose of impairing the usefulness of the pictures of this case, for the purpose of impairing the effectiveness of the pictures of this case.

2) Determination of the immediate deliberation

In light of the records, a thorough examination of the evidence duly adopted and examined by the court below, the court below's determination of guilty of this part of the facts charged is just and acceptable, and there is no error of law by misunderstanding facts and by misunderstanding the legal principles, which affected the conclusion of the judgment.

3. Judgment on the assertion of unfair sentencing

Although the instant pictures were not physically damaged due to the instant crime, and there were extenuating circumstances such as restoration to their original state and removal after being exhibited, it is not recognized that the sentence imposed by the lower court is too unreasonable in view of the following circumstances: (a) the Defendant had a similar criminal record since he was sentenced to two years of suspension of execution in October due to the damage of property, etc. caused by obstruction of performance of official duties; (b) the nature of the instant crime that intrudes on the structure and impairs the utility of the goods used by public offices; (c) there is no special relationship or change of circumstances that may be newly considered in the trial; and (d) other various circumstances that are the conditions for sentencing specified in the instant records and arguments, including the Defendant’s age, environment, character and conduct, the background of the instant crime, and the circumstances before and after the commission of the crime.

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.

Justices Kim Jong-soo

Judge Yellow-il

For judges' refined