[1] Criteria for determining the identity of facts charged or facts charged

[2] In the case of an ordinary concurrent relationship, whether res judicata of a final and conclusive judgment on one crime affects other crimes (affirmative), and the meaning of "one act" as stipulated in Article 40 of the Criminal Code

[3] The case affirming the judgment of the court below which acquitted the crime of defamation on the ground that the crime of defamation and the crime of interference with business among the crime of the final and conclusive judgment is in the relationship of commercial concurrence with the crime of interference with business among the crime of the final and conclusive judgment, and the res judicata

[1] Article 298 of the Criminal Procedure Act / [2] Article 40 of the Criminal Act / [3] Article 40 of the Criminal Act

[1] Supreme Court en banc Decision 93Do2080 delivered on March 22, 1994 (Gong1994Sang, 1368) Supreme Court Decision 98Do749 delivered on August 21, 1998 (Gong1998Ha, 2367) / [2] Supreme Court Decision 86Do2731 delivered on February 24, 1987 (Gong1987, 594 delivered on June 25, 1991 (Gong191, 2072) Supreme Court Decision 91Do2642 delivered on December 10, 191 (Gong192, 560)

Defendant

Prosecutor

Seoul Central District Court Decision 2005No2007 Delivered on December 13, 2005

The appeal is dismissed.

The grounds of appeal are examined.

1. The identity of facts charged or facts constituting an offense ought to be determined based on the Defendant’s act and social facts in mind with the legal functions of the identity of facts, and such normative elements should also be considered (see Supreme Court en banc Decision 93Do2080, Mar. 22, 1994; Supreme Court Decision 98Do749, Aug. 21, 1998, etc.).

The court below affirmed the judgment of the first instance court which acquitted the defendant on the ground that the crime of assault and the crime of assault under the Seoul Central District Court Decision 2004Ma1416 decided Nov. 10, 2004 (hereinafter "the final judgment of this case") and the crime of assault under the Punishment of Violences, etc. by Joint Attempted and Joint Confinement, and the crime of interference with business of May 23, 2003 (hereinafter "the crime of this case") among the facts charged of this case, are identical to the date and place of the crime, and the crime of assault and the crime of interference with business of May 23, 2003 (hereinafter "the crime of this case") were committed in the process where the defendant would receive construction payment from the victim, and the crime of assault under the final judgment of this case was used as the means of each crime of this case, and there is a close causal relation between the two crimes and the crime of this case, the basic facts are identical, therefore, the res judicata effect of the final judgment of this case extends to the charges of this case 1.

Examining the records in light of the above legal principles, the above determination by the court below is justified, and there is no violation of law by misapprehending the legal principles as to the identity of basic facts, as alleged in the grounds of appeal.

2. In the case of an ordinary competition relationship under Article 40 of the Criminal Code, the res judicata effect of a final and conclusive judgment on one of them extends to other crimes (see Supreme Court Decisions 91Do643, Jun. 25, 1991; 91Do2642, Dec. 10, 1991; 91Do2642, Feb. 10, 199). Here, one of the acts here means that an act in light of social concept is evaluated as one of the natural conditions of the object, regardless of the legal evaluation (see Supreme Court Decision 86Do2731, Feb. 24, 1987).

The lower court affirmed the first instance judgment that acquitted the Defendant on the grounds that res judicata effect on the instant final and conclusive judgment extends to the instant facts charged on the ground that the crime of interference with business and defamation among the facts charged in the instant case (hereinafter “instant facts charged”) was realized by the Defendant’s act of causing disturbance to the purport that the victim would not cause the payment of the construction price at the same time and at the same place, and that there was a commercial concurrence, on the grounds that res judicata effect on the instant final and conclusive judgment extends to 2 of the instant facts charged.

Examining the records in light of the above legal principles, the above determination by the court below is justified, and there is no violation of law by misapprehending the legal principles as argued in the Grounds for Appeal.

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

Justices Park Si-hwan (Presiding Justice)