The meaning of "Intimidation", which is the means of the crime of threat / Where intimidation is used as a means of the realization of legitimate rights, the standard of determining whether the crime of threat was commenced

Articles 20 and 350 of the Criminal Act

Supreme Court Decision 94Do2422 Decided March 10, 1995 (Gong1995Sang, 1658), Supreme Court Decision 2013Do6809 Decided September 13, 2013, Supreme Court Decision 2015Do18708 Decided July 11, 2017

Defendant

Defendant

Attorney Kim Jong-soo et al.

Gwangju High Court Decision 2018No282 decided November 15, 2018

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Intimidation, which is the means of the crime of intimidation, refers to notifying a threat of harm and injury likely to be drinking to the extent that it limits the freedom of decision-making or obstructs the freedom of execution of the will. Even if the notice is not illegal, it may be a threat of harm and injury. The threat of harm and injury does not necessarily require the method of specification and does not necessarily lead to the perception that it would cause harm to the other party by language or impulse. In addition, even if it is used as a legitimate means of realization of the right, if the means and method of realizing the right exceed the permissible extent and permissible by social norms even if it is used as a legitimate means of realization of the right, it shall be deemed that the implementation of the crime of threat was commenced. Here, whether certain acts exceed the permissible extent and permissible by social norms in light of the subjective and objective aspects of the act, namely, the purpose and method of pursuit (see, e.g., Supreme Court Decisions 94Do2422, Mar. 10, 199; 2015Do1878, Jul.

2. The lower court, on the following grounds, found all of the facts charged in the instant case guilty, and rejected all of the Defendant’s assertion of mistake and misapprehension of legal doctrine.

A. According to the subcontract agreement entered into with the victim company, if both parties are deemed difficult to perform the contract, the subcontract may be rescinded and terminated. However, if the contract is to be suspended for unavoidable reasons without any justifiable reason, the suspension period of transactions shall be set at a grace period to prevent unfair damage to the other party.

B. The Defendant, while demanding the victim company to grant a six to eight-eight-day grace period, took a view that if the victim company did not pay the money up to that time, it would cause a significant loss due to the suspension of the supply of the automobile parts by suspending the manufacturer of the automobile parts. Such speech constitutes a threat of harm and injury likely to restrict the victim company’s free decision-making or interfere with the freedom of its execution.

C. The Defendant received a total of KRW 11 billion from the victim Nonindicted Co. 1 Co., Ltd. for losses, etc. due to the threat of such harm and injury, and received KRW 4,299,986,069 from the victim Nonindicted Co. 2 Co., Ltd. for the said fear and injury.

D. Defendant’s operating company had difficulties in operating the company due to continuous financial aggravation, etc., and accordingly, the victim company was in imminent situation by examining the procedure for the transfer of gold from the Defendant. However, the Defendant’s intimidation to immediately suspend production without having attempted to resolve conflicts with the victim company by legitimate means cannot be deemed the only means or appropriate means to protect the legal interests of the Defendant. Therefore, illegality is not dismissed.

3. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the exclusion of illegality due to intimidation, intentional act, causation, and legitimate exercise of rights, contrary to what is alleged in the grounds of

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

Justices Lee Dong-won (Presiding Justice)