Supreme Court: "Unauthorized Construction on Another's Land Does Not Constitute Damage Crime"

Only Interference with Use for Landowners
No Impairment of Land's Own Utility

[Asia Economy Reporter Choi Seok-jin, legal affairs specialist] The Supreme Court has ruled that even if a building is constructed without permission on land owned by another person, it cannot be punished under the criminal law for property damage.

The act of using and profiting from land according to its original purpose is merely an act that interferes with the landowner's enjoyment of the land's utility, not an act that diminishes the objective value or utility of the land itself, and therefore does not satisfy the elements of the crime of damage, which requires "damage or concealment or other methods that impair the utility of property."

The Supreme Court's First Division (Presiding Justice Oh Kyung-mi) announced on the 23rd that it dismissed the prosecutor's appeal and upheld the lower court's acquittal in the final appeal of Mr. A (59), who was indicted for property damage.

Mr. A was prosecuted for property damage for constructing a building without permission on land in Paju City, Gyeonggi Province, which was co-owned by 26 people including Mr. B (29 registered owners).

Mr. A had no ownership or usage rights to the land, but his common-law spouse, Ms. C, was a co-owner with a 2/54 share. The total land area was 2,343㎡ (approximately 709 pyeong), and the area where Mr. A constructed the building was about 43㎡ (approximately 13 pyeong).

Originally, Mr. A had a building on the land, but after losing a lawsuit filed by the other co-owners except Ms. C for demolition of the building and delivery of the land, and after the building was forcibly demolished, he constructed a new building again.

The prosecutor charged Mr. A with property damage, believing that he constructed the building with the intent to interfere with the land use of the co-owners.

The first trial court found Mr. A guilty of property damage and sentenced him to eight months in prison.

During the trial, Mr. A argued that since his spouse held a co-ownership share of the land and he constructed the building within the area corresponding to that share, he did not have the intent to damage property.

However, the court pointed out that ▲ co-owners can use and profit from the entire land according to their share ratio, but unless a majority of co-owners agree, a single co-owner cannot exclusively occupy or use a specific part of the land ▲ Mr. A lost the lawsuit filed by the other co-owners for demolition and delivery of the land, so he was well aware that the victims did not consent to his use of the land, yet he constructed a new building again ▲ due to Mr. A's construction, the other co-owners could not use that part of the land until the building was demolished, concluding that "the defendant's construction of the building constitutes an act that impairs the utility of the land in question, and it is reasonable to find that the defendant had the intent to damage property."

However, the second trial court overturned the decision. The appellate court overturned the first trial's ruling and acquitted Mr. A.

Mr. A, who was found guilty in the first trial, appealed on the grounds that the eight-month prison sentence was too harsh.

However, before judging the grounds for appeal, the appellate court re-examined the establishment of the crime of property damage ex officio.

The court stated, "The appellate court may judge ex officio under Article 364, Paragraph 2 of the Criminal Procedure Act even if the grounds affecting the judgment are not included in the appeal statement, so even if the defendant appeals on the grounds of excessive sentencing, if there are reasons favorable to the defendant, the court may judge."

First, the court cited Supreme Court precedents regarding the elements of the crime of property damage.

Previously, the Supreme Court stated, "In light of the principle of clarity in criminal law, the element of 'other methods' in Article 366 of the Criminal Act concerning damage should be interpreted cautiously," and "therefore, 'other methods' does not mean all methods but should be interpreted as methods that can be evaluated as equally unlawful as damage or concealment that impairs the utility of property."

Also, the Supreme Court stated, "The dictionary meaning of damage is to break or ruin an object, and 'damage' under Article 366 of the Criminal Act means directly exercising physical force on property to destroy its essential parts."

Regarding this case, the court judged, "Based on the evidence submitted by the prosecutor alone, it is insufficient to recognize that the defendant's act of constructing a building on part of the land in question constitutes damage or concealment or other methods that impair the utility of the land."

As grounds, the court cited ▲ Mr. A did not exercise physical force on the land itself (for example, water flooding or garbage dumping are examples of physical force on land) ▲ there is no evidence that the land was damaged or its shape changed during the building construction process ▲ the prosecutor filed the indictment on the premise that the entire land was damaged, but according to Mr. A's claim, the building was constructed only on a 13-pyeong site, so it cannot be evaluated that the utility of the entire land was impaired ▲ after the building construction, there was no legal obstacle to the sale of the land, nor was the entire land unusable.

Furthermore, the court pointed out, "The land in question is classified as 'dap' (rice paddy), so interpreting 'acts that impair utility' according to the original purpose of the classification means acts that make it difficult to cultivate rice or similar crops by exercising physical force on the land, but it cannot be said that such a situation occurred to the entire land due to the defendant's act."

Moreover, the court added, "Even if a minority co-owner exclusively occupies or uses a specific part of shared land, it is generally not regarded as property damage under criminal law," and "the defendant's motive to nullify the lawsuit result is not a factor to consider when applying the elements of the crime, and the defendant should bear civil responsibility for his actions."

The Supreme Court judged that although some parts of the second trial's reasoning were inappropriate, the conclusion that Mr. A could not be found guilty of property damage was appropriate.

The court stated, "The unauthorized use and enjoyment of another person's property according to its original purpose is acquiring the utility of the object excluding the owner, and even if the owner cannot enjoy the utility of the object, the utility itself is not infringed, so it does not constitute property damage."

And the court concluded, "The lower court judged the indictment that the defendant impaired the utility of the land by constructing a building without authority on another person's land as not guilty. Although there are inappropriate parts in the lower court's reasoning, the defendant's act was merely constructing a building on already developed land and using and profiting from the site, preventing the owner from enjoying the utility, but not impairing the utility of the land itself, so the conclusion that the crime of property damage does not apply is appropriate."

A Supreme Court official said, "This is the first case explicitly declaring the meaning of impairment of utility of property, an element of the crime of property damage, and that acts interfering with the use of landowners without diminishing the objective value or utility of the land do not satisfy the elements of property damage."

This content was produced with the assistance of AI translation services.