Defendant shall be punished by a fine of 200,000 won.

The above fine shall not be paid by the defendant.

A. An emergency entrance to a cafeteria operated by a victim of mistake of facts was illegally installed, and the defendant filed a petition with the competent authority for removal of illegal installed materials, but was not accepted, and it was legally restored due to its self-help. Therefore, such an act by the defendant is a legitimate act that does not violate the social rules.

Nevertheless, the judgment of the court below which convicted the defendant is erroneous in misconception of facts.

B. The Defendant’s fine of KRW 500,00,000, imposed by the lower court on the Defendant, is too unreasonable.

2. Determination

A. “Act which does not violate the social rules” as stipulated by Article 20 of the Criminal Act on the assertion of mistake of facts refers to an act which is acceptable in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Whether a certain act constitutes a legitimate act that does not contravene social rules and thus, should be determined individually by considering the motive or purpose of the act, the reasonableness of the means or method of the act, the balance between the legal interests of the third protected interests and infringed interests, the fourth urgency, and the fifth supplementary nature that there is no other means or method than the act.

(See Supreme Court Decision 2002Do5077 Decided December 26, 2002, etc.). In light of the above legal principles, the instant case is health room; (1) although the victim was not legally engaged in restaurant business with permission from the competent agency, the victim had been actually engaged in the business for several years, the victim’s restaurant business constitutes “business” subject to the protection of the crime of interference with business under the Criminal Act; and (2) the Defendant is an unauthorized business.