[명예훼손·업무방해] 확정[각공2012상,512]
In a case where Defendants’ mother Gap et al. was prosecuted for obstruction of business on the ground that the Defendants’ family members including the Defendants et al. al. took a kicket stating the aforementioned contents before the entrance of the first floor of the hospital building, and took a alternately one-person demonstration, the case holding that the Defendants’ act cannot be deemed as constituting “defensive force” which is the constituent element of the crime of interference with business, in light of all the circumstances.
In a case where Defendants were indicted for obstruction of business on the ground that Defendants Gap et al. were indicted for obstruction of business on the ground that their family members, including the Defendants, conducted an operation on the back of the 1st floor of the hospital building in question and received the confirmation of real name as an information salt after the Defendants got an operation on the back of the hospital president Eul, and that Gap et al. were punished by a shift of one person, the case affirming the first trial judgment which acquitted the Defendants on the ground that the Defendants did not constitute a force of interference with business solely on the ground that taking into account the number of persons punished for the demonstration, surrounding circumstances, relationship between the Defendants and Eul, etc., taking into account the number of persons who have access to the building, and the number of persons who have access to the building, the surrounding circumstances, and the relationship between the Defendants and Eul, etc., the Defendants’ act of taking only one person’s demonstration on the side of the entrance of the building without interfering with the passage of the visitors or causing noise by using a loudspeaker.
Article 314(1) of the Criminal Act; Article 325 of the Criminal Procedure Act
Defendant 1 and one other
Prosecutor
Notarial decoration;
Suwon District Court Decision 201DaMa295 decided September 8, 2011
The prosecutor's appeal is dismissed.
1. Summary of grounds for appeal;
A. In light of the legal principles: The Defendants 1 put the diskettes at the ○○○○○ Department located in Ansan-dong (Land Number omitted) (hereinafter “instant hospital”) in the 1st floor of the building in Ansan-si (hereinafter “instant hospital”) constitutes force as referred to in the crime of interference with business, and it is apparent that the aforementioned demonstration interferes with the duties of the instant hospital; however, the lower court found the Defendants guilty of the facts charged of defamation but acquitted them about the crime of interference with business. In so doing, the lower court erred by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment.
B. Unreasonable sentencing: The sentence imposed by the lower court (Defendant 1: a fine of one million won, a suspended sentence, Defendant 2: a fine of KRW 700,000,000 and a suspended sentence) is too unjustifiable and unreasonable.
2. Determination
A. Meritorious of legal principles
The “competence” in the crime of interference with business refers to all the forces capable of suppressing and mixing a person’s free will. As such, the force of the crime of interference with business does not necessarily mean the force that directly terminates to a person engaged in the business, either tangible or intangible, and is included in violence, intimidation, social, economic, political status, and pressure by royalty, etc., and in reality, the victim’s free will is not required to control the victim’s free will. However, in light of the offender’s consolation, number of persons, surrounding circumstances, etc., it means the force sufficient to suppress the victim’s free will. As such, whether the force constitutes force should be objectively determined by taking into account all the circumstances, such as the date and place of the crime, motive, purpose of the crime, number of persons, form of force, type of work, and status of the victim, etc. In addition, the force of the crime of interference with business does not necessarily mean the force that directly terminates to a person engaged in the business, and it may also include an act that makes a certain physical state sufficient to restrain a person’s free will, and make it impossible or considerably difficult (see Supreme Court Decision 97Do. 90.
In light of the above legal principles, in full view of the evidence duly adopted and examined by the court below, ① Nonindicted 1, the mother of the Defendants, was under operation at the hospital of this case on August 6, 2010, and Nonindicted 1 again discovered the hospital of this case on August 9, 2010. On the same day, Nonindicted 2, who was under operation, sent Nonindicted 1 to the hospital of Bocheon National University, as soon as Nonindicted 1 discovered an information infection in the left-hand side of the hospital of this case, ② Nonindicted 1 was hospitalized at the hospital of Bocheon National University, but was judged to have been under the influence of Nonindicted 2 before the entrance and exit of the building of this case on October 15, 2010. Meanwhile, Nonindicted 1’s family members, including the Defendants, could not be seen as having interfered with the business of the hospital of this case on the 10th floor of the entrance and exit of this case.
B. As to the assertion of unfair sentencing
In light of the fact that the Defendants did not intend to obtain compensation through legal procedures, but did not intend to engage in demonstration before the instant hospital, and that the Defendants’ act significantly obstructed the operation of the instant hospital, it is recognized that there was no record of having been sentenced to a fine exceeding the Defendants; the motive of the instant crime was taken into account; the Defendants suspended demonstration in accordance with the court’s decision of provisional disposition; and the Defendants seems not to have a high possibility of causing defamation before the instant hospital; and the various sentencing conditions indicated in the instant records and arguments, such as the Defendant’s character and conduct, motive and circumstance of the crime; and the circumstances after the crime, etc., the sentence imposed by the court below is too unreasonable.
3. Conclusion
Thus, the prosecutor's appeal is without merit, and it is dismissed under Article 364 (4) of the Criminal Procedure Act.
Judges Kim Han-sung (Presiding Judge)