[1] Whether "a apartment that is scheduled to be removed from a reconstruction project and all of its occupants do not live in any place" constitutes an object of the crime of causing property damage (affirmative)

[2] The case holding that the court below erred in the misapprehension of legal principles in finding that the act of removing an apartment that is expected to be removed by a reconstruction project constitutes a justifiable act under Article 20 of the Criminal Code, and thus guilty of the facts charged of causing property damage

[1] Article 366 of the Criminal Code / [2] Articles 20 and 366 of the Criminal Code

[1] Supreme Court Decision 78Do2138 delivered on July 24, 1979 (Gong1979, 12171) Supreme Court Decision 2007Do5207 delivered on September 20, 2007 (Gong2007Ha, 1721)

Defendant 1 and five others

Defendants

Attorney Kim Young-young

Seoul Southern District Court Decision 2009No918 Decided August 5, 2009

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. Whether the crime of destroying and damaging property constitutes the element;

Even if an apartment is planned to be removed by a reconstruction project and all of its occupants are in secret without any residence, the objective nature of the apartment itself cannot be used as a residential purpose, which is its original purpose, and if the owners continue to exercise their ownership by way of refusing to register the trust to a reconstruction association and to deliver it, the above apartment cannot be deemed as an object of the crime of causing property damage (see Supreme Court Decision 2007Do5207, Sept. 20, 2007).

Therefore, the judgment of the court below is just and acceptable to determine that each apartment of the victims of this case constitutes the object of the crime of causing property damage, and it is not erroneous in the misapprehension of legal principles as to the elements of the crime of causing property damage, contrary to the allegations in the grounds of appeal.

2. Whether it constitutes an emergency evacuation or justifiable act;

The court below held that although the association of this case filed a lawsuit against the victims for the registration of ownership transfer and the claim for delivery of each apartment of this case against the victims and won the case in the first instance trial, the victims' appeal and continued to exist in the appellate trial at the time of this case, and if the delay in construction is expected to cause significant damage, the defendants' arbitrary removal of each apartment of this case without the submission of the removal report to the head of the competent Gu without the due process can be legally removed each apartment of this case through legitimate procedures, such as filing an application for removal order and provisional disposition, and it cannot be viewed as an emergency evacuation or legitimate act.

However, we cannot accept the above judgment of the court below for the following reasons.

The reconstruction project is based on the premise of the removal of the housing located within the reconstruction area. Thus, it shall be deemed that members entrusted with all rights to dispose of the housing, including the removal of the housing (see Supreme Court Decision 96Da23887 delivered on May 30, 1997). According to the reasoning of the judgment below and the records, the association's articles of association provide that "the association of this case may remove the buildings or structures, etc. within the reconstruction area from the date on which the approval of the project plan was obtained for reconstruction," and the association of this case filed a lawsuit for the transfer of ownership and the transfer of ownership of each apartment of this case against the victims who are members of the association of this case for the purpose of accomplishing the purpose of the association, and the provisional execution order was issued to deliver each apartment of this case to the victims who are members of the association of this case for the removal of the housing of this case to the head of the association of this case. The above judgment did not affect each of the above provisional execution order of the reconstruction project of this case before the removal of the apartment of this case.

Nevertheless, the court below affirmed the judgment of the court of first instance that found the Defendants guilty of the facts charged in this case on the grounds that the Defendants’ act does not constitute a justifiable act. In so doing, the court below erred by misapprehending the legal principles as to a justifiable act, thereby affecting the conclusion of the judgment. Therefore, the ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)