209No1440 Business obstruction teachers
A (55 years old, South)
Attorney Lee Sang-hoon
Busan District Court Decision 2009No377 Decided April 17, 2009
August 13, 2009
The prosecutor's appeal is dismissed.
1. Summary of grounds for appeal;
The defendant's act of manipulating the results and employing new employees in collusion with the person in charge of the test affairs in Busan City, which is another person's business through deceptive means, is unfair to limit the scope of the counter-party to the fraudulent act in the crime of interference with business through deceptive means to the person in charge of the relevant business. Rather, in the case of corporations like Busan City, it is possible to form a corporation's intent through a general meeting or board of directors, etc., even in the case of corporations like Busan City, since the necessity to protect the business of corporations, etc. is much much much longer in the modern society, it is necessary to include corporations, etc. in the counter-party to the fraudulent act. In employing new employees in Busan City, the executive directors C1 and C2 of internal decision-making directors among the internal decision-making members and the executive directors of Busan City did not know that the examination results were manipulated, and 3 credit secretary C2 among the interview members did not know the above manipulation, and therefore, the defendant and the person in charge of the test affairs in this case committed the violation of the law of fraudulent act, thereby affecting the judgment.
2. Summary of the facts charged in this case
피고인은 2007. 10. 2.경 부산시 ◇ 조합장 보궐선거에 당선되어 2007. 10. 4.경부터 부산시 의 조합장으로 근무하고 있다.
피고인은 위와 같이 조합장으로 근무하던 중 2008. 2. 12. 09:30경 부산 서구 남부민동 ○에 있는 부산시 ◇ 3층 조합장실에서 '2008년도 신규직원 채용'과 관련하여 보고를 하러 온 검사실장 C4에게 “이번에 △어촌계장 C5의 딸과 ▲어촌계장 C6의 딸이 시험에 응시를 할 것인데 잘 살펴서 합격을 시켜라, 점수가 안 되어도 어찌 하겠나, 선거때 도와주었는데 그때 내가 약속을 했다”라는 취지로 지시하였다.
On March 16, 2008, the defendant received a telephone report from the above C4 to the above C4 that it is difficult to pass the examination scores of C7 and C8, a grandchild of C6, at the place of the fire at around 16:34, 2008.
그러자 C4는 그즈음 위 ◇ 3층 소회의실에서 채점 업무를 담당하고 있던 C9, C10, C11, C12에게 위 C7과 C8을 합격시키라는 피고인의 지시를 전달하고, 같은 날 22:00경 위 C9, C10, C11, C12는 피고인의 지시에 따라 C7과 C8의 기존 답안지를 폐기하고 새로 답안지를 작성하여 점수를 높여주는 방법으로 위 C7, C8을 의 채용시험에 합격시킴으로써 피고인은 위와 같이 위 C4, C9, C10, C11, C12로 하여금 위계로서 위 C7 과 C8을 ◇ 채용시험에 합격시키도록 하여 업무방해를 교사하였다.
3. The judgment of the court below
A. The lower court acknowledged the following facts based on the evidence of each judgment.
(1) 피고인은 2007. 10. 2.경 부산시 ◇ 조합장보궐선거에 당선되어 2007. 10. 4.경부터 부산시 의 조합장으로 근무하고 있는 자로서 공개경쟁채용 또는 제한경쟁 채용의 방식으로 직원을 임용할 권한을 가진 자이다.
(2) 부산은 애초 조합원 자녀 5명, 일반직원 5명, 경매사 2명 합계 12명을 채용하기로 하고, 기획과의 주관 하에 2008. 2. 초순경 시험공고를 한 후 같은 해 3. 16. 객관식 시험을 시행한 뒤 면접을 거쳐 같은 해 3. 28.경 최종합격자를 결정하였다. (3) 피고인은 2008. 2. 12. 09:30경 부산 서구 남부민동 ○에 있는 부산시 ◇ 3층 조합장실에서 '2008년도 신규직원 채용'과 관련하여 보고를 하러 온 검사실장 C4에게 “△어촌계장 C5 의 딸 C7과 ▲어촌계장 C6의 딸 C8이 응시할 것인데, 잘 살펴서 합격을 시켜라, 점수가 안 되어도 어찌하겠나, 선거 때 도와주고 했는데 그때 내가 약속을 했다”라는 취지로 지시하였다.
(4) From the objective test that came into force on March 16, 2008, the points C7 and C8 were less than the solar, and C13 reported to the effect that “the defendant should not get too much much away from the scores,” but the defendant instructed to re-examine “I will check, examine, and pass the test.”
(5) After discussing with the head of Busan Planning Division C13, he explained the defendant's direction to planning and proxy C10, C11, and Planning Director C12, who are grading staff. C9, C11, C12, and C10 confirmed the answer sheet (the answer sheet of the OMR card) of C8, C8, and C10, and confirmed C8's written examination score of C8, C7 below 46, and included the answer sheet in the visitors.
(6) C10과 C11은 2008. 3. 16. 23:00경 부산 ◇ 서고 맞은 편 회의실에서 각 C7과 C8의 답안지를 커트라인을 넘어서는 50점이 되도록 다시 작성하고, 그 다음날 아침 시험 및 채점감독관인 총무과장 C14의 확인도장을 받았다.
(7) On March 25, 2008, after the interview, the Defendant instructed two children of the union members and three general staff members to be additionally employed. Accordingly, the Defendant’s children, including the above C7 and C8, passed the first test, were fully passed through the interview.
B. In light of the above facts established, the court below found that the planning director 39, 310, 311, 312, who is the person in charge of the examination for new personnel in Busan, and the planning director 39, 310, 311, and 312, who is the person in charge of the examination for new personnel in Busan, passed the examination for Busan by replacing the answer site in C7 and C8, is merely a result of the defendant's illegal orders through the head of the prosecutor's office 34, and the defendant's act does not result in misconception, mistake, or site, and if the defendant who has the authority to employ new personnel in the above examination conducted the above illegal acts through public invitation or understanding, it cannot be deemed that the defendant caused mistake, mistake, or site in connection with the above recruitment of new personnel in Busan, which is a corporation, and thus, in this case, the defendant's improper orders to the above examination officer or the defendant's improper acts cannot be deemed to have caused mistake, mistake, or site for the recruitment of new personnel in Busan, thereby not guilty.
4. Judgment of the court below
First of all, the object of the act in the crime of interference with business is another person's business and the other person's business refers to natural and legal and non-legal entities other than the criminal (see, e.g., Supreme Court Decision 2005Do6404, Dec. 27, 2007). Therefore, it is reasonable to deem that the new employee's business of Busan City (hereinafter referred to as "the association of this case") constitutes the business of the association of this case, which is a juristic person, even though the defendant was in the position to exercise the authority to employ new employees of the association of this case (it is merely the defendant's execution of the business of the association of this case as the head of the association of this case, and it is difficult to view it as the defendant'
Next, in relation to the scope of the other party to the act of deceptive scheme, deceptive scheme means the use of the deceptive scheme by causing mistake, dismissal, or land to the other party in order to achieve the purpose of the actor's act. (1) In principle, intellectual phenomena such as misunderstandings or sites caused by deceptive scheme are the result of the natural person's own intellectual activities; (2) as legal personality chain corporations, etc. are ultimately engaged in the actual activities through the natural person's agency (director, auditor, etc.), interference with the business of corporations, etc. by deceptive scheme is inevitable due to deceptive scheme; (3) the inclusion of a legal entity, etc. in the scope of the other party to the act of deceptive scheme in the crime of interference with business only prior to the necessity of protecting the business, may excessively expand the scope of deceptive scheme function as constituent element element element element in the crime of interference with business, and thus it is difficult to view that not only the person in charge of deceptive scheme but also the other party to the act of deceptive scheme is included in the crime of interference with business, as alleged by the prosecutor.
Finally, with regard to whether the defendant and the defendant's test personnel in charge of the test operation of this case interfere with the internal approval or interview of some visitors who did not know such circumstances by performing the test operation of this case, the following circumstances are shown in the records: ① approval of c1 or C2 in the process of internal decision-making in the recruitment of new employees of the association of this case are subordinate duties to the above new employees, and it cannot be viewed as independent duties. Even if it is separate duties, cI et al. do not interfere with the approval of c1 et al., an assistant through the examination operation of this case in the position of assistant of the defendant. ② In the recruitment of new employees, an interview is conducted for the applicants who passed the written examination of this case, but there is no procedure to confirm the points of written examination or re-examine the evaluation of written examination; ③ In particular, in the case of the new employees who passed the written examination of this case, the applicants who participated in the written examination of this case cannot be seen to have passed the written examination operation of the defendant's internal interview.
In the end, the court below's determination of guilty of the facts charged in this case is just and acceptable, and there is no error of law by misunderstanding legal principles as alleged by the prosecutor in the judgment below, which affected the conclusion of the judgment.
Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.
Presiding Judge, Judge Park Jung-chul
Judges Kim Gin-ju