A defendant shall be punished by imprisonment for not less than eight months.

Provided, That the above punishment shall be imposed for two years from the date this judgment became final and conclusive.

A. Although the act as described in the facts charged by the Defendant, such as mistake of facts, does not constitute “defensive force” under the crime of interference with business, the lower court found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the facts

B. The Defendant was under the influence of alcohol at the time of committing the instant crime, and was in the state of mental disability.

C. In light of the overall sentencing conditions of the instant case, the lower court’s imprisonment (eight months of imprisonment) is too unreasonable.

2. Determination

A. “In the crime of interference with business” in the crime of interference with business in determining the mistake of facts means all the forces capable of suppressing and mixing a free will of a person, and is not a tangible or intangible, and is not required to control the victim’s free will in reality, but means the force sufficient to suppress the victim’s free will in light of the offender’s status, number of persons, surrounding circumstances, etc. As such, the determination of whether it constitutes force ought to be made objectively by taking into account all the circumstances, such as the date and place of the crime, motive and purpose of the crime, number of persons, capacity, mode of duty, type of duty, type of duty, and the status of the victim.

(see, e.g., Supreme Court Decision 2009Do5732, Sept. 10, 2009). In addition, the power of the crime of interference with business does not necessarily mean only the power to directly terminate to a person engaged in business, but may include acts that make a certain physical condition sufficient to suppress a person’s free will to commit acts impossible or considerably difficult to perform.

(See Supreme Court Decision 2009Do5732 Decided September 10, 2009). The following circumstances acknowledged by the Health Center and the evidence duly admitted and investigated by the lower court regarding the instant case, namely, ① the Defendant was an restaurant operated by the Victim D while under the influence of alcohol over several occasions in a short period, and the Defendant was found in front of the said restaurant.