재물손괴죄의 ‘기타 방법에 의한 효용 침해’와 관련된 최근 대법원 판결에 대한 비판적 검토

The crime of property damage does not fall under the category of crimes involving unlawful appropriation, as it does not require an intention to unlawfully gain possession. The “property” in the crime of property damage refers to tangible objects and controllable forces, and it includes real estate such as buildings and land. The concepts of “damage,” “concealment,” and “other methods” in property damage are distinct from each other. “Damage” refers to acts that directly exert physical force on another person's property, thereby physically damaging or impairing the property’s original utility by reducing or destroying it. “Concealment” refers to acts that obscure the whereabouts of the property, documents, or electronically recorded special media records, making the discovery of the property difficult or impossible and impairing its utility. Even in cases of “damage” or “concealment,” for property damage to be established, it is appropriate to interpret that the utility of the property must be impaired according to the strict interpretation principle of legality. The concept of “other methods of impairing utility,” which is distinct from “damage” or “concealment” in the crime of property damage, refers to any act that impairs the utility of property through methods other than damage or concealment. According to the principle of clarity in the rule of law (nulla poena sine lege), “other methods” must be narrowly interpreted as unlawful methods that are equivalent in severity to damage or concealment. In cases of graffiti, the Supreme Court appears to rely on factors such as the purpose and function of the object in question, the impact on its intrinsic utility, and the cost of restoration as the primary grounds for determining “impairment of utility by other methods.” From the perspective of the principle of legality, it is appropriate to interpret “impairment of utility by other methods” narrowly. According to Article 366 of the Criminal Code, “impairment of utility by other methods” should correspond to the degree of impairment caused by “damage” or “concealment.” The impact on the intrinsic utility and the cost of restoration can be relatively clearly measured both qualitatively and quantitatively, which can serve as a relatively clear standard in determining the degree of utility impairment. In this regard, the Supreme Court's stance appears reasonable. In particular, when determining the purpose and function of the structure involved in cases of graffiti, if aesthetics are not considered a primary purpose or function, other factors will likely play a minor role in determining “impairment of utility by other methods.” Therefore, it is crucial to carefully assess the purpose and function of the structure in question. In cases involving obstruction of vehicle operation, the act of placing hard-to-remove structures close to the front and rear of the victim's vehicle, even if no physical damage or functional impairment occurs to the vehicle itself, should be regarded as impairing the vehicle's original utility through other methods, as it temporarily prevents the vehicle from being used for its intended purpose. Of course, factors such as the impact on the original purpose or function, the duration of the act, and the intent to commit property damage should be considered separately when determining whether the crime of property damage has been established. In cases involving unauthorized building construction, the Supreme Court's judgment appears somewhat confused regarding the distinction between utility impairment caused by “damage” and utility impairment caused by “other methods,” as well as the distinction between the crime of damage and the crime of unlawful appropriation. “Damage” and “other methods” are distinguishable concepts. Even if the property itself is not damaged, utility impairment can still occur through “other methods.” Property damage does not require an “intent to unlawfully appropriate”; it is not a crime that only arises when there is no intent to unlawfully appropriate. In the case of movable property, if the crime of theft is not established, the crime of property damage can still be established. In the case of real estate, even if the offender intended to unlawfully appropriate the property, if the elements of theft are not met, the crime of property damage may still be established. However, it appears that the case in question can be judged as one where the utility of the land was not impaired, considering the impact on the intrinsic utility of the entire plot of land. It is hoped that further legal developments will help reduce the confusion arising from the interpretation of the elements of property damage and ensure greater legal stability and appropriateness.