Defendant

Defendant

Eassort (prosecutions) and chront (public trial)

Attorney Song-hee

Busan District Court Decision 2014 High Court Decision 953 Decided January 28, 2016

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

Although the Defendant completed the automatic installation work on the 1st floor of the building of Nonindicted Party 3, the Defendant did not receive the payment of the remainder of the construction work within the agreed time limit, and on January 10, 2014, the Defendant installed the automatic door in the said automatic door so that the said automatic door does not automatically close from January 20, 2014, which was ten days after the said automatic door was set up through the reservation function for the suspension of self-operation, and did not terminate the said establishment. The Defendant did not damage the said automatic door and did not intend to damage the Defendant.

B. Legal principles

At the time of the installation of the above automatic text or at the time of the installation of the above automatic number key, the defendant requested the victim to pay the balance of construction from January 20, 2014 to January 20, 2014, and the victim said that the payment of the balance of construction is not known. Thus, the defendant's illegality is dismissed because the victim's consent to the suspension of the operation of the above automatic text or the suspension of the operation of the above automatic text is a legitimate act.

C. Unreasonable sentencing

The punishment of the lower court (200,000 won) is too unreasonable.

2. Determination

A. As to the assertion of mistake of fact

1) Relevant legal principles

In the crime of destroying and damaging property, the crime of destroying and damaging property constitutes not only a case where a property cannot be used for its original purpose, but also a case where a property cannot be used temporarily due to an act of destroying and damaging property (see Supreme Court Decision 82Do1057, Jul. 13, 1982, etc.). In addition, in recognizing the criminal intent of destroying and damaging property, it is sufficient that there is a perception that the property will lose its utility against the owner’s will (see Supreme Court Decision 92Do1345, Jul. 28, 1992, etc.).

2) Determination

(5) On December 10, 2013, the lower court: (a) concluded that Nonindicted Party 1’s automatic studio ○○○○○○○ (hereinafter “instant building”) was a 1870,00 won contract for the installation of the first floor of the instant building (hereinafter “the first construction”) without having to use Nonindicted Party 1’s automatic 1’s automatic studio at the time of the instant construction site and without having to use Nonindicted Party 1’s automatic 1’s automatic studio 1’s automatic studio to prevent the instant installation of the instant building from being 1’s automatic 10,000 won; and (b) the Defendant was to use Nonindicted Party 1’s automatic 1’s automatic studio 1’s automatic studio 1’s automatic studio 2,000,000 won to be 1’s automatic studio 1’s automatic studio 2,011.

Therefore, the defendant's assertion of mistake is without merit.

B. As to the misapprehension of legal principle

In light of the following circumstances acknowledged by the evidence duly adopted by the court below, ① Nonindicted 1 stated in the court below that “No explanation from the Defendant or the Defendant’s employees about the intended function of the automatic inquiry of this case is available.” ② Nonindicted 4, who was employed as the site manager at the construction site of the building of this case, stated in the court below that “the instant automatic inquiry function from the Defendant or the Defendant’s employees did not have any explanation about the intended function of the automatic inquiry of this case, and the instant automatic text was requested to be reached several times since it did not work automatically from January 20, 2014, but the Defendant did not have any other company to open the instant automatic text and newly installed the instant automatic text to the effect that it was difficult to view that the Defendant did not have any other means to automatically suspend the operation of the instant automatic text.” Meanwhile, Nonindicted 5, an employee of the Defendant, as the victim of this case, did not have any other means to automatically use the instant automatic text to make up for the victim’s remaining time until the balance is paid.”

Therefore, the defendant's assertion of legal principles is without merit.

C. As to the assertion of unreasonable sentencing

It is recognized that the Defendant had committed the instant crime by installing an automatic text and being paid the remainder of the construction work, and there are circumstances to consider the circumstances leading to the instant crime.

However, in full view of the following circumstances: (a) the instant crime committed by the Defendant’s automatic inquiry function to prevent the automatic door from automatically shut down by using the reservation function; (b) the case is not less than that against the Defendant’s fault up to the trial; (c) the Defendant did not reflect the mistake up to the trial; and (d) the victim did not agree with the victim; (d) there were no special circumstances or changes in circumstances that may be newly considered in the trial after the original sentence; (e) the Defendant’s age, environment, the background leading to the instant crime, and the circumstances before and after the instant crime, etc., the sentence of the lower court is too unreasonable.

Therefore, the defendant's assertion of unfair sentencing is without merit.

3. 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.

Judges Kim Jong-hee (Presiding Judge)