2016 Fixed 1547 Property damage and damage

A

The type of trial (prosecution), Kim Jong-Dil (Trial)

Attorney B in charge of Law Firm C

February 10, 2017

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Facts charged;

At around 17:50 on May 27, 2016, the defendant damaged the property of the victim by removing approximately 20,000 won from the d apartment management office of the D Complex, the victim E with a banner of about 3 meters in length and about 1m in width.

2. Determination

A. As to the assertion that the crime of causing property damage does not constitute the element of the crime of causing property damage, the crime of causing property damage is established when a special media records, such as another person’s property, documents, or electronic records, such as electronic records, are destroyed or concealed to impair their utility by any other means (Article 366 of the Criminal Act). Here, where the utility is harmed by any damage or concealment or other means, it includes not only cases where the goods, etc. cannot be used for their original purpose, but also cases where they are made in a state in which the specific role of the goods, etc. cannot be played temporarily (see, e.g., Supreme Court Decision 2016Do9219, Nov. 25, 2016). Accordingly, if a banner is removed to prevent the original function of the banner from being known by removing the banner, the crime of causing property damage is established even if the Defendant did not destroy the banner. Moreover, as long as the Defendant and the defense counsel had awareness and intent to remove the

B. As to the assertion that the defendant, who is the head of apartment management office, has the right to manage the banner installed on the apartment shopping rail

Article 2 subparagraphs 2 and 9 of the former Housing Act (amended by Act No. 13805 of Jan. 19, 2016 and enforced on Aug. 12, 2016) defines "multi-family housing" and "welfare facilities" as "welfare facilities", separately from "multi-family housing" and Article 43 defines the part of "multi-family housing" as "multi-family housing with the exception of facilities sold to the general public."

According to the evidence duly adopted and investigated by the court, Article 2 of the management rules for the apartment complex (hereinafter referred to as the "multi-family housing of this case") provides that "Article 2 of this Code shall apply to apartment houses within the apartment complex, incidental facilities and welfare facilities owned by the occupants, and the management and use of the site thereof," and Article 4 and attached Table 1 does not stipulate the apartment building of this case as the object of management, and the apartment building of this case was individually sold to the general public, and accordingly, the individual owners of the apartment building of this case constituted the "management committee for the apartment complex" as the management committee for the apartment complex of this case, separate from the representative committee for the apartment house of this case.

In full view of the above provisions of the Housing Act and the above recognition, the scope of the effect of the apartment management regulations of this case and the management authority of the management office of this case shall be limited to apartment houses of this case, incidental facilities and welfare facilities owned by occupants, etc., and the apartment buildings of this case sold in general shall be excluded.

However, the place where the victim installed the banner of this case is a rail attached to the building of the apartment building of this case, where the management authority of the defendant, who is the head of the management office of the apartment of this case, does not extend.

In addition, even if there is room for the banner attached by the victim to be an illegal banner as prescribed by the "Act on the Management of Outdoor Advertisements, etc. and Promotion of Outdoor Advertisement Industry", it is limited to the Metropolitan Autonomous City Mayor, the Special Self-Governing Province branch, the head of Si/Gun/autonomous Gu, and at least the defendant, who is the head of the apartment management office of this case, has no authority to remove the banner.

Therefore, we do not accept this part of the argument by the Defendant and the defense counsel. As to the assertion that there exists a justifiable reason for the Defendant to mislead the Defendant that removal of banner as stated in the facts constituting a crime does not constitute a crime.

The Defendant, as the head of the instant apartment management office, is in a position to be well aware of the laws and regulations and self-governing rules related to the management of collective housing. In addition, the Defendant stated at the prosecution that he did not seek advice from the police or other competent administrative agencies, such as administrative agencies, before removing the banner. In light of such circumstances, it cannot be deemed that the Defendant has made a serious effort to avoid it by fully performing his intellectual ability, such as making an examination and deliberation, or inquiring into relevant agencies, while removing the banner installed in a place outside the management authority of the Defendant’s building. Therefore, it is difficult for the Defendant to have been aware of the illegality thereof, and thus, it is difficult to accept this part of the Defendant’s and the

D. As to the assertion that the removal of banner as stated in the facts constituting a crime by the defendant is justified and the illegality is excluded.

"Acts that do not violate social norms" under Article 20 of the Criminal Act refers to acts permissible in light of the overall spirit of legal order, social ethics, or social norms, which are located behind the act. Whether certain acts constitute legitimate acts that do not violate social norms, and thus, it should be determined individually by rationally and reasonably considering the following specific circumstances: (a) the legitimacy of the motive or purpose of the act; (b) the reasonableness of the means or method of the act; (c) the balance between the interests of protection and infringement; (d) the balance between the interests of infringement; (e) the interests of protection and infringement; and (e) the supplementary nature that there is no other means or method than the act (see, e.g., Supreme Court Decisions 2002Do5077, Dec. 26, 201; 2010Do5989, Nov. 13, 2011; 2014Do7302, Sept. 4, 2014).

According to the records, on November 2015, the victim filed a complaint against the defendant and the chairperson of the council of occupants' representatives against the charge of occupational breach of trust, alleging that the defendant and the chairperson of the council of occupants' representatives of the apartment building of this case waste management expenses related to the service of the apartment building of this case, and caused property damage to the occupants. However, the Daejeon District Prosecutors' Office issued a non-prosecution disposition against the defendant, etc. around December 2015; ② the victim dissatisfied with the complaint and filed a complaint with the prosecution but was dismissed on January 1, 2016; ② the victim dismissed the complaint with the prosecutor's office at the Daejeon High Court on April 11, 2016; ② the victim was dismissed on April 11, 2016; ② the victim was dismissed on July 20, 2016; ③ the victim was removed on the ground that he/she was removed on the 20th election management office, which was the representative of the council of occupants, and the victim was removed on July 17, 2019, 2016.

According to the above facts, removing the banner attached by the defendant can be deemed to have a substantial, urgent, and complementary nature in the means and method of removing it simply without damaging the banner of the victim and keeping it in the management office. ③ The prosecution's appeal against the non-prosecution of the charge of occupational breach of trust against the defendant and the application for adjudication were all dismissed, and the defendant's immediate appeal was dismissed later, resulting in the infringement of the legal interests of the defendant's owner of the right to property rights or the balance between the defendant's right to the removal of the banner and the defendant's right to property rights.

Therefore, the defendant's act is reasonable to the extent permitted by social norms, and it should be viewed as a justifiable act lacking illegality.

3. Conclusion

Thus, the defendant's act of entering the facts charged in this case constitutes a justifiable act under Article 20 of the Criminal Act, so the defendant is not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the defendant is publicly announced pursuant to Article 58

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