(a) Point of interference with business;

Until March 8, 2009, the victim non-indicted 1 (the "△△△△△ prior to the opening of the name"), jointly with the defendant, operated the head office of the instant ○○○ cafeteria by agreement with the defendant (hereinafter "head office") from March 9, 2009, and even if the defendant had the right to operate the head office independently, he actually occupied and operated the head office by excluding the defendant from March 9, 2009 to the date of the instant case. Thus, the defendant's act of obstructing the restaurant business of the above victim by force without undergoing legitimate legal procedures constitutes a crime of interference with business. Nevertheless, the court below acquitted the defendant of this part of the facts charged under the premise that the defendant has the right to operate the head office, or erred by misapprehending the legal principles as to whether the crime of interference with business was established, thereby affecting the conclusion of the judgment.

B. The obstruction of performance of official duties and injury

From the standpoint of Nonindicted 3, 4, etc., who is a police officer arresting the Defendant, the Defendant clearly constitutes a person who was immediately after the completion of an act of interference with business or who is in the process of committing a crime of interference with business. As such, arresting the Defendant as a flagrant offender constitutes legitimate performance of official duties. Therefore, the Defendant’s act of assaulting and injuring Nonindicted 3 constitutes the crime of obstruction of performance of official duties and the crime of injury. Nevertheless, the lower court acquitted the Defendant of each of the facts charged under different premise, thereby adversely affecting the conclusion of the judgment.

(c) Points of assault;

Since the victim non-indicted 2 is not a police officer, the legal principles of obstruction of performance of official duties cannot be applied to this part of the facts charged, and therefore, it is obviously illegal to use the victim's assault. However, the court below judged this part of the facts charged as legitimate self-defense as an act conducted in the process of resisting the defendant to escape arrest of an illegal flagrant offender. The court below erred by misapprehending the legal principles, which affected the conclusion

2. Determination on the grounds for appeal

(a) Point of interference with business;

(1) Whether the main business of the victim non-indicted 1 is subject to protection of the crime of interference with business

(A) The term “business” subject to the protection of the crime of interference with business under the Criminal Act refers to a business or business engaged in an occupation or continuously for a certain period of time and actually becomes the basis of social activities. Contracts or administrative acts, etc., which form the basis of such business, are not necessarily lawful, but should have the value of protection from infringement by other person’s unlawful acts. Therefore, in order to recognize the assignee’s interference with business in the event of a dispute over the transfer or acquisition of a certain business, the existence of an agreement on transfer or acquisition of the pertinent business should be recognized, and further, the agreement is based on the social activity of the transferee, which is practically and mentally formed after the transfer of the pertinent business to the transferee, and thus, should be deemed as a basis for the protection from infringement by the transferor’s unlawful acts (see Supreme Court Decision 2006Do3687, Aug. 23, 2007).

(B) In the instant case, first of all, we examine whether the victim non-indicted 1 had the right to operate the headquarters before March 8, 2009, claiming that the victim non-indicted 1 started to operate the headquarters independently.

In light of the following circumstances acknowledged by the evidence of the judgment, i.e., the defendant and his mother, leased a store under the name of the defendant on Jan. 3, 2005, and operated the headquarters. The defendant was in bad credit standing due to the failure of the Internet shopping mall business operated before, and thus, registered the headquarters in the name of the above non-indicted 5. The victim non-indicted 1 was in the name of the above non-indicted 5. The defendant was paid daily wages and monthly wages from the above non-indicted 5 after 1 year from the opening of the headquarters. In light of the records of this case, in light of the fact that the name of the business operator was changed from the above non-indicted 5 to the above victim's name on Sept. 3, 2008, but it appears that it was for convenience such as loans, etc., the court below's judgment that the defendant had the right to operate the headquarters at least is justified until 308 years prior to the opening of the headquarters.

(C) Next, we examine whether the Defendant transferred the right to operate the headquarters to the victim non-indicted 1 on March 8, 2009.

The victim non-indicted 1 stated to the effect that from March 8, 2009, the victim himself/herself obtained loans from financial institutions or made a large investment in his/her own name for the operation of the ○○○ cafeteria, the victim non-indicted 1 entered into an agreement with the defendant and the above non-indicted 5 that he/she himself/herself independently operated the ○ ○○ cafeteria cafeteria cafeteria (hereinafter referred to as "non-indicted 1") located in Gangnam-gu Seoul Special Metropolitan City New-dong (number 2 omitted), and that he/she independently operated the ○ ○ cafeteria cafeteria cafeteria cafeteria, changing the business account of the head office and the password of the cash card from that time to that time, and independently managed

However, the following circumstances revealed by the lower court and the first instance court’s duly adopted and examined evidence. ① The victim Nonindicted Party 1 changed the account for business and the password of the said head office on March 9, 2009. From that time, there were various disputes arising between the Defendant and the victim with the right to operate the principal office and the right to operate the said principal office. ② If the victim’s agreement was actually reached, it is difficult to understand that the above dispute occurred immediately after the agreement was reached, ③ the right to operate the restaurant operated for several years, and it is difficult to readily understand that the Defendant and the above Nonindicted Party 5 agreed on the transfer of the cafeteria to the above victim’s principal office to the above ○○○○○○○○○○○○○○○ Office’s 6th day of examination. In light of the above circumstances, it is difficult to view that the Defendant and the above Nonindicted Party 1, as alleged in Nonindicted Party 1, did not have any objective evidence regarding the above transfer of the 6th day of examination, and each of the above 6th day of the above 2nd day of loan to the Defendant.

(D) Furthermore, even if there was an agreement between the Defendant and the victim Nonindicted 1 on the transfer and acquisition of the main office’s operating right, it is deemed that the said victim actually acquired the main office’s operating right in accordance with the said agreement, and furthermore, it can be deemed that the said victim had reached the extent of protection of the crime of interference with business by being the basis of social activity in which the business was actually and peaceful.

Comprehensively taking account of the aforementioned evidence: (a) the victim non-indicted 1 tried to independently operate the headquarters by changing the business account and the password of the head office; (b) the dispute over the operating rights between the victim, the defendant, and the above non-indicted 5 occurred in full; and (c) the above defendant filed a complaint against the above victim on charges of occupational embezzlement, defamation, etc.; and (d) the above victim filed a complaint against the defendant on charges of occupational embezzlement, theft, obstruction of business, etc.; (c) the defendant and the above non-indicted 5 filed an application for the registration of the trade name and route of the above ○○○○ restaurant on April 6, 2009 with only their service right as the service right holder; and (d) the food offered to customers at the head office was created and supplied from the above non-indicted 5, etc. at the separate office, but the fact that the defendant directly raised the right to separate food from the head office around the time when the victim asserted the right to independent operation of food.

Examining the above facts in light of the legal principles as seen earlier, in a situation where there is a dispute between the defendant and the victim non-indicted 1 surrounding the existence and validity of the agreement on the transfer and takeover of the operating right of the ○○○ cafeteria, it is difficult to view that the above victim started to engage in a normal business as the principal business owner of the principal office, or that the business has reached the extent of protection value in relation to the defendant, who is the existing principal business owner of the principal office, by unilaterally asserting that the above victim was a legitimate transferee, and unilaterally changed the business account and the cash card password and excluded the defendant.

(E) As such, the main office’s operating right was originally owned by the Defendant, and thereafter, it is not recognized that there was an agreement between the Defendant and the victim Nonindicted 1 on transfer and takeover of the above operating right, and it is not determined that the actual business carried out by the said victim at the time of the instant case was a duty worthy of protection under the Criminal Act. Accordingly, it cannot be deemed that the business of the victim Nonindicted 1’s main office constitutes a business subject to protection of the crime of interference with business.

(2) Whether the defendant's act constitutes force of interference with business

Article 314 of the Criminal Act, which is a part of the constituent elements of the crime of interference with business, does not require the restraint of the victim's free will, but refers to the force sufficient to suppress the victim's free will in light of the offender's status, number of persons, surrounding circumstances, etc. (see Supreme Court Decision 9Do495 delivered on May 28, 199, etc.).

In this case, comprehensively taking account of the evidence duly adopted and examined by the court below, ① the defendant drinks with the son at the time and place indicated in this part of the facts charged, and the defendant thought that the day was one week in the separate house business, and the number of customers facing two scams in good hands, and leads them to “this scams, scams, scams, and scams, so long as you can scam the scams, scams,” and ② The fact that customers who scams and scambling the defendant’s horses and scambling again (On the other hand, the victim Nonindicted Party 1 and 2, scambling their husbands from the time and place of the defendant’s above act, and there is no room to acknowledge the defendant’s motive to be scambling from each of the above defendant’s testimony to the above scambling of the defendant and the above scambling of the defendant.

At the same time, the defendant was faced with two strings in both hands, and there was only a sound to the effect that "doing so long as meals are not calculated," most of the customers showed a friendly response, and the inside atmosphere of the main office was not changed after the defendant's act, and the victim non-indicted 1 was not able to receive food from customers. In light of the above legal principles, the defendant cannot be said to have exercised the power sufficient to suppress the victim's free will.

(3) Sub-decisions

Therefore, the victim non-indicted 1's main business is not a business subject to protection of the crime of interference with business, and the defendant's act does not constitute a threat of force on the crime of interference with business. Accordingly, the judgment of the court below which acquitted the defendant of this part of the facts charged is just, and the judgment below did not recognize any error of mistake of facts or misapprehension of legal principles as otherwise

B. The point of obstruction of performance of official duties, injury and assault

In light of the circumstances acknowledged by the record, especially the time when police officers arrive at ○○ cafeteria in this case upon receiving a report, ② the situation and atmosphere of the above ○○ cafeteria at the time when police officers arrive, ③ specific behavior of the defendant at the time when the defendant was identified as an offender, ④ the overall process when police officers demanded the defendant to accompany the defendant, ⑤ the police officers' response, ⑤ the police officers' efforts to arrest the defendant as a flagrant offender, and the contents of assault and injury that occurred in the course when the police officers want to arrest the defendant as a flagrant offender, the court below found the defendant not guilty of this part of the charges, on the ground that the defendant did not constitute "a person during or after the criminal conduct" under Article 211 of the Criminal Procedure Act, and it was committed in the process of resisting the victim non-indicted 2 to arrest the victim non-indicted 3 or to injure the victim non-indicted 3, and thus, it constitutes legitimate self-defense.

In full view of the above facts-finding and interpretation of the legal principles of the court below is just, and it is difficult to view that there is a crime of obstruction of the execution of official duties of the defendant as an unlawful act of violating the victim's body since it did not affect the conclusion that the defendant's act was an unlawful act of infringing upon the victim's body, and it cannot be seen that the defendant's act was an unlawful act of infringing upon the victim's body, and it does not constitute an unlawful act of infringing upon the victim's body, and it cannot be seen that the defendant's act did not constitute an unlawful act of infringing upon the victim's body, as it did not constitute an unlawful act of infringing upon the victim's body, since it did not constitute an unlawful act of infringing upon the victim's body, as it did not constitute an unlawful act of infringing upon the victim's body, since it did not constitute an unlawful act of infringing upon the victim's body as the victim under Article 211 of the Criminal Procedure Act.

Therefore, the judgment of the court below on this part cannot be viewed as an erroneous determination of facts or a misunderstanding of legal principles as asserted by the prosecutor, and this part of the prosecutor's assertion is without

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Dong-hee (Presiding Judge)