[2] Meaning and standard of determining “business” subject to protection of the crime of interference with business / Meaning of “defensive force” as stated in the crime of interference with business, and whether the victim’s intent of freedom is practically threatened (negative) / Whether the crime of interference with business requires actual occurrence of interference with business (negative)

1. Judgment on the first ground for appeal

A. Article 1(1) of the Criminal Act shall apply in cases where a sentence is significantly changed even if there is a change in the law after the crime was committed, or where there is no change in the punishment (see Supreme Court Decision 2015Do19137, Mar. 24, 2016, etc.).

B. Of the facts charged in the instant case, Article 2(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014; hereinafter “former Punishment of Violences Act”) which was enforced at the time of the joint withdrawal from the office, punish a person who habitually commits a crime under Article 319 of the Criminal Act. Article 319(2) of the same Act provides that where two or more persons jointly commit a crime under any subparagraph of paragraph (1), punishment shall be aggravated by up to 1/2 of the punishment prescribed in each of the relevant Articles of the Criminal Act. However, Article 2(1) of the Act on the Punishment of Violences, etc., which was amended by Act No. 13718, Jan. 6, 2016; Article 319(2)1 of the same Act provides that a person who jointly commits a crime under Article 319(1) of the Criminal Act shall be subject to aggravated punishment by not later than 2/10 of the relevant statutory punishment.

C. Examining these circumstances in light of the legal principles as seen earlier, it is justifiable for the lower court to maintain the first instance judgment that convicted the Defendant by applying Article 2(2) and (1)1 of the former Punishment of Violences Act and Article 319(2) of the Criminal Act at the time of the act as to the refusal of joint withdrawal among the facts charged in the instant case. In so doing, the lower court did not err by misapprehending the legal principles on Article 1(1) and (2) of the Criminal Act.

2. Determination on the grounds of appeal Nos. 5 through 7

A. “Business” subject to the protection of the crime of interference with business under the Criminal Act refers to work or business engaged in an occupation or continuously, which is worth protecting from infringement by another person’s unlawful act. Whether the business is legally worthy of protection is determined depending on whether the business is actually peaceful and has become the basis of social activities (see, e.g., Supreme Court Decisions 2001Do3587, Sept. 14, 2001; 2007Do3218, Jul. 26, 2007). In addition, “comforcing” in the crime of interference with business refers to any force that can lead to suppressing and mixing human free will, and is not classified as tangible or intangible, nor is it necessary to protect a victim’s free will as well as assault and intimidation, and whether the victim’s free will is practically threatened (see, e.g., Supreme Court Decision 200Do32509, Sept. 26, 2009).

B. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and the evidence duly admitted by the lower court, the lower court did not err by misapprehending the legal doctrine on the business subject to protection of the crime of interference with business, the attitude of the act of interference with business, the force of the act of interference with business, and the intentional act of interference with business.

3. Determination on the grounds of appeal Nos. 2 through 4

A. Based on the evidence duly adopted and examined, the lower court acknowledged facts as indicated in its reasoning, and determined that the Incheon International Airport is a place where the safety and order of the users in the Incheon International Airport is more severe than anything else, and that it is prohibited from unauthorized occupation, etc. of airport facilities under the former Aviation Act (repealed by Article 2 of the Addenda to the Aviation Safety Act, Act No. 14116, Mar. 29, 2016; hereinafter the same shall apply) (Article 106-2). The Incheon International Airport Management Committee is subject to instruction and supervision by the Minister of Land, Infrastructure and Transport on matters concerning the security and safety of airport facilities (Article 16 of the Incheon International Airport Corporation), and that the Incheon International Airport Management Committee, based on the methods, scale, and contents of phrases written in the facts charged in this case cited by the Defendant, etc., appears to have caused pressure and apprehension to users of the Incheon International Airport, and that the Incheon International Airport Promotion Committee, in principle, continues to comply with the demand of the labor union to suspend the demonstration and the action of this case.

B. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s reasoning was partially inappropriate, but such determination is justifiable in conclusion. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the legitimacy of trade union activities, the concept of employer under the Trade Union and Labor Relations Adjustment Act, the former Aviation Act

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)