Defendant 1 and one other

Defendants

Kim Customs (prosecutions) and Kim Dae-dae (Trial)

Attorney Seo-conop (National Election for the Defendant)

Ulsan District Court Decision 2015Gohap1959 Decided August 9, 2016

The judgment of the court below is reversed.

Defendant 1 shall be punished by a fine of KRW 1.5 million and by a fine of KRW 700,00,000, respectively.

In the event that the Defendants did not pay the above fine, each of the 100,000 won was converted into one day, the Defendants shall be confined in the workhouse.

To order the Defendants to pay an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

1) As to the Defendants’ obstruction of business

For the following reasons, this part of the facts charged is to be acquitted. The court below erred by misapprehending the facts and by misapprehending the legal principles, thereby finding the guilty guilty of this part of the facts charged.

A) ○○○○○○○○ (hereinafter “○○○”) (hereinafter “○○○”) is one of the business entities operated by the Defendants in the form of a business with the victim, along with Nonindicted Co. 4 Company, and the Defendants can be deemed as their own duties, and thus, cannot be deemed as falling under the business subject to protection of the crime of interference with business.

B) Even if the Defendants’ act constitutes a business subject to protection of the crime of interference with business by domestic affairs, the Defendants’ act constitutes self-defense or legitimate act and thus constitutes legitimate act, despite hearing the fact that the victim embezzled public funds of Nonindicted Co. 4 and sought confirmation of the fact in the position of representative director or auditor of Nonindicted Co. 4, but the victim refused it, thereby making some of the victims’ refusal to do so.

2) As to defamation by Defendant 1’s assertion of false facts

While Defendant 1 expressed the victim’s embezzlement and female relations in the process of taking advantage of the victim’s embezzlement of public funds of Nonindicted Co. 4, Defendant 1 expressed the victim’s embezzlement and the facts related to the embezzlement of the victim, it cannot be deemed that the facts themselves are true, and thus, the lower court erred by misapprehending the legal doctrine and misunderstanding the facts, thereby finding the Defendant guilty of this part of the facts charged.

B. Unreasonable sentencing

Even if the defendants were guilty, the punishment sentenced by the court below to the defendants (the fine of two million won, the fine of one million won, and the fine of one million won) is too unreasonable.

2. Determination on the grounds for appeal

A. As to the defendants' assertion of mistake of facts and misapprehension of legal principles

1) As to the Defendants’ obstruction of business

The following reasons (the facts or circumstances are recognized by the evidence adopted by the court below and the court below) are justified in finding the defendants guilty of interfering with the business of the defendants, and there is no misconception of facts or misapprehension of legal principles.

A) Whether the victim’s ○○○ business constitutes a business subject to protection of the crime of interference with business

○○○○ is a private business chain registered under the sole name of the victim on May 16, 2012. As such, even if it is determined that there was a business agreement between the Defendants and the victim to jointly operate ○○○ as alleged by the Defendants, the business is not entirely attributed to the Defendants, but is also attributed to the victim. Accordingly, the business of ○○○○○, which was being carried out by the victim at the time of this part of the facts charged, constitutes a business subject to protection of the crime of interference with business.

B) Whether the Defendants’ act of this part of the facts charged constitutes self-defense or legitimate act

Even if it is determined that there was a business agreement between the Defendants and the victims to jointly manage the ○○○○○○○○ as alleged in the Defendants’ assertion, the Defendants are not allowed to interfere with the victim’s exercise of force on the part of the victim’s performance of ○○○○○○○, as stated in this part of the facts charged on the ground of the victim’s embezzlement of public funds by Nonindicted Incorporated Company 4.

2) As to defamation by Defendant 1’s assertion of false facts

A) Summary of this part of the facts charged

(1) At around 16:00 on April 8, 2015, Defendant 1 found out △△△△△△ Branch located in the Cheongbuk-si, Cheongbuk-si, Cheongbuk-do, ( Address 2 omitted) and expressed false information to Nonindicted 5, the victim’s wife, “The victim embezzleds public funds of the company, embezzled women with the money, arrives with the money, and moved to the money, and took the son Kim Dok-si with the money,” thereby openly impairing the victim’s reputation.

(2) 피고인 1은 2015. 4. 13. 11:30경 울산 울주군 (주소 생략)에 있는 ○○○○ 사무실에 찾아가 직원들 6명 가량이 있는 자리에서 피해자에게 “씨발놈 니가 인간이가, 씨발놈아 씹새끼 좃같은 새끼, 회사공금 횡령해서 그 돈으로 골프치러 다니고, 골프 치는 여자들하고 이제는 모텔이 아니고 호텔 다니데, 돈도 많다, 그 돈 다 공금 횡령한 거지”라는 등 허위사실을 이야기하여 공연히 피해자의 명예를 훼손하였다.

(3) 피고인 1은 2015. 4. 14. 11:00경 위 ○○○○ 사무실에서 직원들 6명 가량이 있는 자리에서 피해자에게 “씨발놈, 좃같은 새끼, 횡령한 돈으로 여자 밑구녕에 다 갇다 넣고 그년들한테 명품가방 사주고, 회사돈 흥청망청 썼구만”이라는 등의 허위사실을 이야기하여 공연히 피해자의 명예를 훼손하였다.

B) The judgment of the court below

The lower court convicted Defendant 1 of this part of the facts charged on the ground that the facts alleged by Defendant 1 are obviously false.

C) Determination of the immediate deliberation

(1) In order to establish the crime of defamation by publicly alleging any false fact under Article 307(2) of the Criminal Act, the criminal must publicly indicate the fact, and the fact that the publicly alleged is a degradation of people’s social evaluation, and the criminal should have recognized such fact as false. In determining whether the publicly alleged fact is a false fact, if the material part is consistent with objective facts in light of the overall purport of the publicly alleged fact, it cannot be viewed as a false fact even if there is a little difference in the detailed fact or somewhat exaggerated expression (see Supreme Court Decision 2010Do6343, Nov. 15, 2012).

(2) In light of the following circumstances acknowledged by the records of this case, it is difficult to readily conclude that Defendant 1’s remarks on this part of the facts charged (hereinafter “instant remarks”) are false, and Defendant 1 was aware of the falsity, with the sole evidence submitted by the prosecutor, and furthermore, it is reasonable to deem that this part of the facts charged is not guilty on the ground that there is no proof of criminal facts. Therefore, the lower court that found Defendant 1 guilty of this part of the facts charged is erroneous

(A) Of the material facts stated in the instant statement, the following are combined to the effect that “the injured party embezzled public funds of the company” and “the injured party has a female.” The other part of the instant statement is not true or true, and even if it appears that it constitutes an exaggerated expression of the above important part. We first examine whether the above important part is false and Defendant 1 perceived that it was false.

(B) The part on the statement that the victim embezzled public funds of the company

① The Defendants filed a complaint with the following: (a) Defendant 2 was the representative director of Nonindicted Co. 4; (b) Defendant 1 was the auditor; and (c) around April 2015, the Defendants filed a complaint with the content that “the injured party embezzled the public funds of Nonindicted Co. 4 for personal use; and (c) the injured party committed an occupational embezzlement of KRW 45,839,380 from Daejeon District Court on November 17, 2016 to March 5, 2014; (d) Defendant 1 was sentenced to a suspended sentence of three years for a year and six months; and (e) Defendant 1 was sentenced to a suspended sentence of imprisonment with labor for the following facts: (a) the injured party and the prosecutor appealed on May 19, 201; and (b) the judgment became final and conclusive on May 27, 2017.

(C) The part of the statement to the effect that the victim has a female.

① Defendant 1 was well aware of the personal issues of the victim, such as divorce and marriage with the former wife, which had been aware of about 15 years prior to the victim. However, around April 2015, Defendant 1 appears to have known that the victim had a female problem from the victim’s staff members, his branch, etc., and it appears that the victim was aware of the fact that the victim had a female problem. ② On April 13, 2015, the victim dialogueed with Defendant 1 and Defendant 1, and Defendant 1, “I knew of how he had come to go to the latter, and come to go to the latter, and come to go to the present, for a period of 1 year?” From the district court on January 14, 2016, it was difficult to readily conclude that the victim had been sentenced to imprisonment with prison labor for 26 years from around 2016, and Defendant 1 had been raped with this part of the crime.”

3) Sub-decisions

The part of the judgment of the court below regarding defamation by Defendant 1’s false statement should be reversed due to the above error. Since the court below rendered a single punishment by deeming that Defendant 1’s business obstruction and defamation by false statement constituted concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment of the court below as to Defendant 1 among the judgment below cannot be reversed in its entirety.

B. As to Defendant 2’s assertion of unreasonable sentencing

○ Unfavorable Circumstances: Defendant 2’s crime of obstruction of business of this case is not good.

The circumstances favorable to ○○: (a) was found not guilty of the charge of defamation by Defendant 1’s statement of false facts in the trial; and (b) was confirmed to have some circumstances to be taken into account in the motive of Defendant 2’s crime interfering with the instant business. Defendant 2 was sentenced to a fine once for traffic-related crimes, and there was no criminal record except for the case

In full view of the above unfavorable circumstances, including favorable circumstances, Defendant 2’s age, sex, and environment, relationship with the victim, motive, means, results, etc. of the crime, and various factors indicated in the arguments and records, such as the circumstances after the crime, etc., the sentence imposed by the court below on Defendant 2 is too unreasonable.

3. Conclusion

Since the defendants' appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act without examining the defendant 1's assertion of unfair sentencing, and the judgment below is again ruled as follows through pleading.

Defendant 1 is a shareholder who is an auditor on the corporate register of Nonindicted Co. 4, and Defendant 2 is a representative director on the corporate register of Nonindicted Co. 4 and is registered as a business registration representative, and the Defendants are married, and the victim Nonindicted Co. 1 is the victim’s representative on the business registration of ○○○○○.

1. Obstruction of the Defendants’ business

가. 피고인 2는 피고인 1과 공모하여 2015. 4. 13. 11:30경부터 14:00경까지 울산 울주군 (주소 생략)에 있는 ○○○○ 사무실에서 피해자와 직원 6명가량이 있는 자리에서 피해자에게 “씨발놈 니가 인간이가, 씨발놈아 씹새끼 좃같은 새끼”라는 등의 욕설을 하고, 회사 직원들에게 “너희들은 도둑질을 같이 해주었다, 인생이 불쌍하다, 너희 부모가 불쌍하다, 돈 들여 공부시켜 놨더니 이런 좃같은 회사에 취직해서 일하고 있냐?”는 등의 욕설을 하면서 약 2시간 30여분에 걸쳐 피해자의 ○○○○ 업무를 방해하였다.

B. From April 16, 2015 to 14:30 on April 16, 2015, Defendant 1 obstructed the victim’s ○○○○○○○○○○○○○○○○○○○ in the place where six employees are located at the place described in the foregoing paragraph (a) as follows: (a) Defendant 1: (b) was satisfed on the part of the employees; (c) he was able to kill and die in the absence of internal food; (d) he was able to me off the police; (c) was towed by the police; (d) was her thickness; (d) was her thickness; and (d) the width was less than one hour and 20 minutes.

2. Defendant 1’s defamation

A. At around 16:00 on April 8, 2015, Defendant 1 found at the △△△ branch located in the Cheongbuk-si, Cheongbuk-si, Cheongbuk-do ( Address 2 omitted). Defendant 1 publicly damaged the victim’s reputation by publicly expressing the following facts: “The victim embezzled the company’s public funds, embezzled the female with the money, opened the female with the money, and opened the Kim Jong-dong with the money, and led the female with the money,” etc.

나. 피고인 1은 2015. 4. 13. 11:30경 위 ○○○○ 사무실에 찾아와 직원들 6명 가량이 있는 자리에서 피해자에게 “씨발놈 니가 인간이가, 씨발놈아 씹새끼 좃같은 새끼, 회사공금 횡령해서 그 돈으로 골프치러 다니고, 골프 치는 여자들하고 이제는 모텔이 아니고 호텔 다니데, 돈도 많다. 그 돈 다 공금 횡령한 거지”라는 등의 사실을 이야기하여 공연히 피해자의 명예를 훼손하였다.

다. 피고인 1은 2015. 4. 14. 11:00경 위 ○○○○ 사무실에서 직원들 6명 가량이 있는 자리에서 피해자에게 “씨발놈, 좃같은 새끼, 횡령한 돈으로 여자 밑구녕에 다 갇다 넣고 그년들한테 명품가방 사주고, 회사돈 흥청망청 썼구만”이라는 등의 사실을 이야기하여 공연히 피해자의 명예를 훼손하였다.

The summary of evidence presented by this court is the same as the corresponding part of the judgment of the court below, and it is cited in accordance with Article 369 of the Criminal Procedure Act.

1. Relevant Article of the Act and the choice of punishment for the crime;

○ Defendant 1: Article 314(1) of the Criminal Act (Interference with Business, Selection of Fine) and Article 307(1) of the Criminal Act (Defamation point, Selection of Fine)

[Judgment on the grounds of appeal No. 2-A(2)(c) as seen above, the facts charged by Defendant 1’s assertion of false facts are not guilty; however, according to the evidence adopted by the court below, the Defendant’s statement as to this part of the facts charged is sufficiently recognized, and thus, the Defendant’s statement as to the facts charged, thereby impairing the victim’s reputation. Thus, the Defendant is guilty of defamation under Article 307(1) of the Criminal Act (see Supreme Court Decision 2007Do1220, Oct. 9, 2008).

○ Defendant 2: Articles 314(1) and 30 (Selection of Fine) of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant 1: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of Concurrent Crimes of Crimes of Interference with Business with Severe Punishment)

1. Detention in a workhouse;

Defendants: Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Defendants: Article 334(1) of the Criminal Procedure Act

1. The scope of punishment by law;

A. Defendant 1: Fines of KRW 50,000 to KRW 22,500

B. Defendant 2: Fine of KRW 50,000 to KRW 15 million

2. Scope of recommended sentences according to the sentencing criteria;

The sentencing criteria shall not apply as the fine has been selected.

3. Determination of sentence;

A. Defendant 1

○ Unfavorable Circumstances: Defendant 1’s crime of defamation of this case is not good.

The circumstances favorable to ○: Defendant 1 was found not guilty on the part of Defendant 1’s defamation by publicly alleging false facts in the trial, and it was confirmed that there were some other circumstances to consider Defendant 1’s business obstruction of the instant case and the motive for committing defamation.

In full view of the aforementioned unfavorable circumstances, including favorable circumstances, Defendant 1’s age, sex, and environment, relationship with the victim, motive, means, results, and circumstances after the crime, etc., the sentence as ordered shall be determined by comprehensively taking into account all the conditions of the argument and the sentencing indicated in the record of the crime.

B. Defendant 2

Article 2-2(b) of the judgment on the grounds for appeal above shall be determined as per Disposition in consideration of the various sentencing conditions as set forth in this paragraph.

1. The summary of the facts charged (the point of defamation by publicly alleging false facts by Defendant 1);

The grounds for appeal are as set forth in Section 2-A(2)(A) of the judgment.

2. Determination

As seen in Article 2-A(2)(c) of the judgment on the grounds of appeal above, this part of the facts charged falls under a case where there is no proof of criminal facts and thus should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of defamation in the judgment on the grounds of appeal, the judgment of acquittal shall not be rendered separately

Judges Kang Jae-sung (Presiding Judge) and Kim Young-young

(1) The facts charged in the instant case and the facts constituting the crime of the lower judgment indicated as “△△△△△,” but they seem to be erroneous.

Note 2) In the event that a fine is selected as the original judgment, the sentencing criteria shall not apply.