[1] The case affirming the judgment below holding that the above act of intrusion does not constitute a justifiable act in a case where the defendant, a company auditor, was absent from office near the month in which he was fired with the company's management, and his access card was suspended, and entered the company's audit room to steal a computer hard disc upon obtaining access certificate from the security guards

[2] In a case where another person's property is used without the consent of the possessor, whether the intent of larceny is recognized

[3] The case affirming the judgment below holding that in a case where the auditor Gap, a company auditor, was absent from office near the month due to a fire with the company management, and the hard disk was removed from the company's audit room and returned at a time near the four months thereafter, the defendant's intent of unlawful acquisition can be recognized because it was difficult to evaluate the return after temporary storage of the hard disc

[1] Articles 20 and 319(1) of the Criminal Act / [2] Article 329 of the Criminal Act / [3] Article 329 of the Criminal Act

[2] Supreme Court Decision 81Do2394 delivered on October 13, 1981 (Gong1981, 669) Supreme Court Decision 2005Do7819 Delivered on March 9, 2006 (Gong2006Sang, 683) Supreme Court Decision 2005Do8081 Delivered on March 24, 2006

Defendant

Defendant

Daejeon District Court Decision 2010No990 Decided July 9, 2010

The appeal is dismissed.

We examine the grounds of appeal.

1. As to the intrusion by room

According to the reasoning of the judgment below, the court below held that in order to be recognized as a justifiable act, the act of intrusion upon the audit room of the non-indicted corporation did not constitute a justifiable act because it did not interfere with the reasonableness of the means and method of the act, as well as the legitimacy of the motive and purpose of the act, the legal interest protected by law and the balance between the benefit of infringement and the benefit of infringement, urgency, and supplement, even if the defendant was the auditor of the non-indicted corporation and entered the audit room by receiving access certificates from the security guards, even though the defendant was absent near the month in which the defendant's access cards were suspended at 6:48 a.m., while the defendant's access cards were suspended, it did not constitute a legitimate act

Examining the reasoning of the lower judgment in light of the record, we affirm the lower court’s determination as justifiable.

The court below did not err in the misapprehension of legal principles as to legitimate acts under the Criminal Act, as otherwise alleged in the ground of appeal.

2. As to theft

In the case of larceny, an intention to acquire illegal property is an intention to acquire the property or the equivalent right even if it is not required to permanently hold the economic benefit of the property, that is, an intention to acquire the property or the equivalent right, even if it is intended to acquire only the value of the property (see Supreme Court Decision 81Do2394, Oct. 13, 1981, etc.). In a case where a property of another person is used without permission from the possessor, if the property of another person is used without permission, it is consumed or used to the extent that the economic value of the property itself was considerably significant, or if it is discarded to another place that is not the original one after being used or used, or it is occupied for the long time without returning it, it may be recognized by deeming that the owner of the property or the equivalent right was an intention to infringe on the ownership or the original right (see Supreme Court Decision 2005Do7819, Mar. 9, 206, etc.

In light of the above legal principles and the records, the court below's decision that it is difficult to judge that the defendant removed a hard disc from the computer of the audit room of the non-indicted corporation and returned it temporarily after the temporary storage is recognized is just and acceptable.

The court below did not err in the misapprehension of legal principles as to unlawful acquisition and intent as otherwise alleged in the ground of appeal.

In addition, the allegation in the grounds of appeal is that there is no intention of larceny because the aforementioned computer possession does not recognize others, or that there is no intention of larceny in order to file a charge of management corruption of the non-indicted corporation. However, since the computer installed in the office of the non-indicted corporation as the owner of the non-indicted corporation was used by the defendant while in office, it cannot be deemed that it belongs to the sole possession of the defendant, and as long as the defendant was possessed with the articles owned by the non-indicted corporation under the management of the non-indicted corporation with the intent of unlawful acquisition,

The Supreme Court Decision 94Do303 delivered on September 5, 1995 cited in the ground of appeal is a case where the defendant listens to the commercial's quality books, submits a letter to the carbook and took the company's non-financial documents, etc., which was normally managed entirely, and the company went back to work after submitting the letter, and it is not appropriate to invoke the case as it is, unlike this case, as it is.

3. As to the invalidity of indication in the line of duty

Examining the reasoning of the judgment below in light of the records, it is reasonable to view that the defendant was aware that his computer was subject to provisional seizure, and to this part of the facts charged is justified.

The court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or by failing to exhaust all necessary deliberations in the selection of evidence belonging to the exclusive authority.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)