[2] In a case where the Defendant, an executive director of the Company A, was prosecuted for interfering with the business of fair and objective employment of the victim by selecting the applicant designated by the Defendant as the final successful candidate in consultation with the remaining interview members, the case holding that the judgment below convicting him of interference with the business of Company B was erroneous in the misapprehension of legal principles

1. In the crime of interference with business under Article 314(1) of the Criminal Act, the object of the act is another person’s business, and the other person here refers to a natural or juristic person other than an offender or an unincorporated organization. In addition, in the crime of interference with business through deceptive means, “defensive means” means the act of causing mistake, mistake, or land to the other party in order to achieve the purpose of the act (see, e.g., Supreme Court Decision 2005Do6404, Dec. 27, 2007).

2. According to the reasoning of the lower judgment and the evidence duly admitted and examined, the following facts are revealed.

A. A. Around July 13, 2011, Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) announced that Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) classified a general administration and personnel field (HR) and recruited new employees and selected successful applicants in order of high-level braille by field. According to the plan for the recruitment of administrative staff of Nonindicted Co. 1’s company, the method of examination of interview is calculated by multiplying the “relevant evaluation factors” by the “evaluation rate” and then average the scores by interview committee members. An interview committee’s individual and independent examination is prohibited, and a person who has obtained a higher score from other interview committee members is selected from the evaluation items. In addition, if it is deemed that there is no eligible person regardless of the evaluation results in the relevant field, the method of examination of interview is calculated by multiplying the “evaluation factors” by the “evaluation rate.”

On the other hand, the defendant was informed of his opinion that he would select accounting experts or English competent staff members at the above new staff.

B. The Defendant of Nonindicted Company 1’s managing director, the Defendant of other non-executive director, Nonindicted 2, Nonindicted 3, and Nonindicted 4 of the Secretary-General were the interview members, and they interview 13 applicants on August 9, 201. In light of the characteristics of Nonindicted Company 1’s business operation, Nonindicted Company 1, who operated an international school, was in need of an employee who is able to be able to use in English, and the Defendant with English history interviews the applicants in English.

After completion of the interview, Nonindicted 2 prepared and submitted a grading sheet to Nonindicted 5, who is an employee in charge of personnel management of Nonindicted Company 1, and went out of the interview place. Nonindicted 4 prepared all grading slips, while Nonindicted 3 and Nonindicted 3 left most of the grading column as a public column or recorded points on a part of the grading column.

C. The Defendant, Nonindicted 3, and Nonindicted 4, who is an interview member of the remaining three persons, consulted on the selection of the final successful candidate for about 30 minutes. Nonindicted 3, by setting out the order from the first to the sixth in order, entered his name in the paper A(A) No. 4 (Evidence No. 318) (Evidence No. 1 to the evidence record), and the Defendant would be able to employ an employee who would be able to work in cooperation with other fellows, and it was discussed to the effect that the Defendant would request the cooperation of the Defendant’s opinion.

D. The Defendant presented to other visitations a list of the names of applicants in which Nonindicted 3’s names are written in the order of priority, and presented a list of applicants’ names in which Nonindicted 3’s names are written in writing. The other two interviewers consented to the Defendant’s opinion, and the candidates from the first to the fifth list prepared by the Defendant were determined as final successful candidates.

E. All the right to appoint employees of Nonindicted Company 1, including new appointment, promotion, transfer, etc., shall be vested in the representative director. On August 27, 2015, Defendant 1 of the lower court, the representative director of Nonindicted Company 1, was aware that the Defendant was at the sixth day of the first instance court on August 27, 2015, when reporting the result of the above interview screening from the Defendant, the final successful applicant was not determined in the order of total points according to the employment plan of this case, but the interviewers decided the final successful applicant in consultation regardless of the marking sheet. In general, Nonindicted Company 1 stated that he did not believe that he was wrong to pass an evaluation of the Defendant high in English because his English ability is necessary for an employee who has participated in English.

F. On October 13, 2015, the prosecutor applied for the amendment of a bill of amendment to the indictment, which selectively adds “the duties concerning the fair and objective employment of the victim Nonindicted 2’s employees” to “the duties concerning the employment of the victim’s co-defendant 1” among the original facts charged, and the first instance court permitted it on October 14, 2015, which was the seventh trial date.

3. A. We examine these facts in light of the legal principles as seen earlier.

1) The duty of employing employees of Nonindicted Company 1 belongs to Co-Defendant 1 of the lower court, who is its representative director, and the lower court as the victim of the crime of interference with business in this case only participated in the employment of Nonindicted Company 1 as an interview member. As such, Nonindicted Party 2’s duty is not “fair and objective employment of employees” as decided by the lower court, but is merely “Interview business” for the employment of employees of Nonindicted Company 1.

2) Nonindicted 2 completed the interview with Nonindicted 5, after completing an interview with the applicants, and preparing and submitting a marking slip to Nonindicted 5, leaving the interview place, and thereby the interview with Nonindicted 2 was completed. After that, the Defendant: (a) was aware of other interviewers who had remaining to the effect that he would be able to pass the interview with the applicants in English; and (b) the remaining interviewers determined the final successful applicants by accepting the Defendant’s proposal. Even if the Defendant exercised influence in selecting the final successful applicants, it cannot be said that such act caused mistake, mistake, or a site to Nonindicted 2, who had already completed the interview.

3) Meanwhile, it is understood that Non-Indicted 1 Co-Defendant 1 of the original trial, who has the authority to employ employees, was employed as a final successful candidate different from the method of determining the final successful candidate stipulated in the recruitment plan of this case. Thus, it is difficult to view that the defendant misleads or omitted Co-Defendant 1 of the original trial in the process of selecting the final successful candidate, or used the site of Co-Defendant 1 of the original trial.

B. Nevertheless, the lower court upheld the first instance judgment convicting the victim Nonindicted 2 of the selective charges of this case, on the grounds indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the “business” and “defensive” of the crime of interference with business through deceptive scheme, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)