(영문) 서울중앙지방법원 2018.4.6. 선고 2016고합1289 판결

On April 6, 2016, the Defendant, at the Seoul Central District Court, sentenced one year of suspended execution to six months of imprisonment for the violation of the Road Traffic Act (the crime of refusal of measurement of drinking alcohol and the crime of aiding and abetting a criminal), and the judgment became final and conclusive on January 26, 2017.

[Status of the defendant or the President]

From March 2013 to June 2014, the Defendant served as the secretary of the Office of Government Administration, a public official in political service who assists the President according to the Government Organization Act and the Presidential Decree, as the secretary of the Office of the Office of the Vice Minister, who is a public official in political service and serves as the secretary of the Office of Government Administration, the secretary of the Office of Economic and Trade Resources, the secretary of the Ministry of Strategy and Finance, the secretary of the Ministry of Land, Infrastructure and Transport, the secretary of the Ministry of Maritime Affairs and Fisheries, and was in a position to exercise the influence on the duties or in fact in the activities of the enterprises engaged in various projects by taking charge of national policies,

From February 25, 2013, the D President E (hereinafter referred to as the "President") of the Republic of Korea (hereinafter referred to as the "President") is accompanied by the head of the State and the administration under the Constitution of the Republic of Korea in order to grow and stabilize the national economy, and policies on large construction projects and national land development, such as cities, houses, military installations, roads, ports and other social and indirect facilities, corporate establishment, industrial structure adjustment, corporate concentration regulation, business activities such as external trade, real estate speculation control, price and wages adjustment, employment and social welfare, and consumer protection, and finally determines the establishment and implementation of economic policies, such as policies on life, currency, finance and taxes, and other financial and economic policies, such as selection of business operators entrusted to the heads of the competent administrative departments, authorization and permission of new projects, financial support, tax investigation, etc., and is in a position to exercise direct and indirect influence on the business activities of enterprises engaging in various projects.

【Criminal Facts】

The victim F is the president of the G company H, who was employed in I in around 1995 and worked as the president of the G company in around 2002, the JJ’s managing director in around 2005, and the president of the K/L from around 201 to around 201. In particular, since March 2011, the victim N is a third party of the victim F and vice president of the G company, the representative director of the G company, the representative director of the G company, and the president of the H company, who was detained after being detained on July 1, 2013 due to a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax). The victim N is a person who was reappointed from around 2005 to around 203 (hereinafter referred to as “M”).

The victim F sent a broadcast of scarving E, a candidate for the presidential election, through the "R's implications and political scopon," which was operated by M around June 2012 before the D President election, and then planned, invested and distributed the "U" of M around September 2012, and around July 2013, V, an affiliate company of the G company, was actively engaged in cultural contents business by reviewing investment in the production of the film called "X", which was based on the unification of the former president.

On the other hand, on July 4, 2013, the Defendant was instructed on July 4, 2013, to the effect that, immediately after reporting the Cheongdae-dae of the Prime Minister for Economic Affairs, which was conducted in the Cheongdae-dae, as Seoul Jongno-gu Office, the Cheongdae-gu Office, the president and the vice president of the FJ, “I will be able to be able to be able to be able to become the president.”

The Defendant, according to the foregoing order, was detained by the president of the G company on July 1, 2013 due to the suspicion of tax evasion, embezzlement, breach of trust, etc. of the KRW 60 billion, and the G company was placed in an emergency management system, with his own influence as C, used his/her own influence to let the victim F, who was in charge of the area of the entertainment business in the G company, leave the victim F, who was in charge of the area of the entertainment business in the G company, in the management line.

Accordingly, on July 2013, the defendant demanded that the victim N, who was in charge of the role of the president of the G company after the detention of the above H, "I will be able to have his/her losses from his/her management", and on July 2013, he/she continued to provide the victim N with the phone call with the victim's "I will be able to get the victim N's greater (if you will not leave the house)", "I will be able to enter into an investigation soon," "I will be able to enter into an investigation," "I will be able to do so if I will have to enter into an investigation," "I will be able to make I will be able to do so if I will have to enter into the investigation," "I will be able to do so, if I will have to enter into the public prosecutor's office," "I will have to do so? I will have to do so at the latest, I will have to enter into the public prosecutor's office late."

The Defendant, in collusion with the President, attempted to threaten the victims, and cause the victims to resign from the position of the Vice-Chairperson of the G company and to leave the victims from the office of the Vice-Chairperson of the G company, etc. However, the victims were attempted to commit an attempted act by failing to comply with such request.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness N;

1. Some statements of each prosecutor's protocol of examination of the defendant against the defendant;

1. Statement made to the prosecution by the N;

1. A written statement;

1. The tape recording file (including CDs) (18-1) of telephone conversationss (including the CDs (hereinafter referred to as the “net Nos. 18-1”), each protocol of examination of witnesses (number 37,38), each tape recording (Summarys No. 39,40);

1. Each investigation report and accompanying documents (number 3, 3-1, 3-2, 4 through 4-3, 9 through 9-2, 11, 11-1, 12, 12-1, 21 through 21-4, 28, 28-1);

1. Previous convictions indicated in the judgment: One copy of the inquiry into criminal and investigation career data (A), the copy of the search of integrated cases (2016Do2033), one copy of the output of the judgment (Seoul Central District Court 2016No416), one copy of the written judgment (Seoul Central District Court 2016No1291), one copy of the output of the decision (Seoul Central District Court 2016No1291), and one copy of the output of the decision (Supreme Court 2016Do2033), and one copy of the output

1. Summary of the assertion

The video recording file No. 18-1 in the table of prosecutor steams seems to have been recorded by a third party, not the party to a conversation. Since the recording by a third party, not the party to a conversation, constitutes a violation of the Protection of Communications Secrets Act, the recording file is inadmissible as illegally collected evidence.

2. Determination

A. According to the records, N’s telephone conversations with the Defendant on July 2013, 2013, recorded the conversations with the Defendant, and N deleted the recording file after leaving F around that time, and the prosecutor received the recording file from a legal team reporter affiliated with the general programming channel on November 2016, and submitted the recording file as evidence of this case.

B. One of the parties to a telephone conversation does not constitute a wiretapping even if the recording of the other party’s conversations does not constitute the act of recording the contents of the conversations with the Defendant. Thus, the act of recording the contents of the conversations with the Defendant does not constitute a violation of Article 3(1) of the Protection of Communications Secrets Act (see, e.g., Supreme Court Decision 2002Do123, Oct. 8, 2002). Meanwhile, according to the above acknowledged facts, the prosecutor’s act of recording the contents of the conversations as evidence is determined as a duplicate of the rerecording files or the rerecording files thereof with the F, and the aforementioned assertion by the attorney constitutes a violation of the Protection of Communications Secrets Act. However, the act of recording the contents of the telecommunications that had already been received at the same time as the transmission and reception of the telecommunications subject to wiretapping is not included in the act of acquiring the contents of the telecommunications that had already been completed (see, e.g., Supreme Court Decision 201Do4216, Apr. 21, 201207).

D. Therefore, we cannot accept the defense counsel’s assertion that the aforementioned recording file constitutes illegally collected evidence.

Application of Statutes

1. Article applicable to criminal facts;

Articles 324-5, 324(1), and 30 of the Criminal Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Imprisonment Selection

1. Handling concurrent crimes;

The latter part of Article 37 and the first sentence of Article 39 (1) of the Criminal Act

1. Suspension of execution;

Determination as to the assertion of the defendant and his defense counsel under Article 62(1) of the Criminal Act (including the circumstances favorable to the defendant among the reasons for sentencing below)

1. Summary of the assertion

A. The Defendant’s words to N does not constitute intimidation of coercion.

B. The Defendant did not have any specific conspiracy with the President, and there was no intention of coercion. Since the Defendant, a secretary, cannot expect to refuse the explicit direction of the President, the Defendant has no possibility of expectation or is very low.

2. Determination

A. Whether the defendant's act constitutes intimidation in the crime of coercion

1) Relevant legal principles

A) Intimidation, the means of the crime of coercion, refers to informing a person of harm and injury likely to be frighten to the extent that it objectively limits the freedom of decision-making or interferes with the freedom of decision-making (see, e.g., Supreme Court Decision 2003Do763, Sept. 26, 2003). The threat of harm and injury may be made by means of ordinary language or, depending on the case where it is done without one-way speech, or by using one-way speech without one-way word. Determination should be made by comprehensively taking into account not only the external appearance of the act, but also the circumstances leading to the act, such as the situation leading to the act, the relationship with the victim, etc. The issue of harm and injury to the extent that the person subject to intimidation causes fear should be made by taking into account the relevant circumstances such as duties, social status, forced rights and obligations of both parties to the act (see, e.g., Supreme Court Decisions 2003Do5394, Apr. 37, 2007).

B) A threat of harm and injury in intimidation, which is the means of coercion or threat of public intimidation, is sufficient if it does not necessarily mean that it would cause harm and injury to the other party by speech or behavior, even if not explicitly. It may be indirectly made by any third party other than the person under threat. In a case where an actor demands the delivery of property or pecuniary benefits by using unlawful consolation duties based on his/her occupation, status, etc., and where the perpetrator causes fear that there is a risk of unreasonable disadvantage if the other party does not respond to such demand, the threat of harm and injury may also be made (see, e.g., Supreme Court Decision 2010Do13774, Apr. 11, 2013).

2) Specific determination

In full view of the above legal principles and the evidence revealed as follows, the following facts and circumstances, the statement of the defendant's N, the contents of the statement about the company's business management in the case of a large enterprise such as G company, and the actual situation where it is difficult for the defendant to easily refuse the request of the President or C secretary with authority over various authorization, permission, and investigation, etc., which can directly or indirectly affect the business management in the case of a large enterprise such as G company, by taking advantage of the position of the President and C secretary who can exercise a de facto or de facto influence on the business activities, the defendant's act requires N and F to leave the victim's business line by withdrawing from the position of the president and C secretary who can exercise a de facto or de facto influence on the business activities, and it is determined that the crime of coercion is a crime of coercion. Accordingly, this part of this part of the defendant and defense counsel's assertion is not accepted.

A) On July 2013, 2013, the Defendant visited Nman on the first day, and during Seoul on the following day:

In the Gu, the Defendant was detained by the president of G company H on charges of tax evasion, embezzlement, breach of trust, etc. at the time when the Defendant met N. The prosecution stated that “N was a situation in which G company and various affiliate companies were subject to search and seizure by the prosecution at the time of ‘the prosecution' and the H was detained by the president, so it was not possible for B to be allowed for B to hear and refuse the demand,” and that Cheongdae and Cheongdae stated that “N was a de facto situation in the regime, so it was impossible to disregard the real influence of C, as it was the de facto situation in the regime (Evidence record 479 pages). It was revealed that the Defendant responded to the Defendant’s demand from the time when the contact was received by the Defendant at the time of the contact with the Defendant.

B) As above, the Defendant argued to the effect that the G management gap is likely to arise due to the detention of the NN on the job of H president, and because there is a bicycle race such as NN, it would be better to leave the president, and if so, it would be desirable that NN NN will resign from the P, and FNN will leave the president, and 'VIP'. The F G GG company's vice president would be 'I am free from the management.' In the prosecutor's office and this court concerning the present situation, N appears to be erroneous in the government, but I think that N would have been able to refuse to withdraw from the position of the person operating the company, i.e., it would not be able to refuse to withdraw from the prosecutor's office's record, i.e., evidence at the time of the request of KG company.

C) The N subsequently delivered FF’s above requirements. At the prosecution and the court of the case 2017 high 364 case, N stated that “N could not ignore the demand of the President from the standpoint of Cheongdae-man G company, and that “N talked with the F Vice-Chairperson because it is not possible to comply with such unfair demand,” “F would have a reason to do so to do so, and “F would have a reason to do so,” and “F would have confirmed that VIP continued to know the fact that the request was made by the Defendant, and it would have been known about the resignation request of Cheong-man,” and “F would have made efforts to inform the Defendant of what is the truth of the President’s request for the withdrawal of Cheong-man, and that the Defendant would have been objectively removed from the Defendant’s mobile phone decision-making at the first time after 482, 1092, witness, and witness 21).”

The defendant is more severe than the defendant. (b) N.N. I will be able to come to the investigation of the defendant, which would be soon soon. I think that if you will come to the investigation of the investigation, we will come to the investigation, and I will be able to come to the (b) the (c) will be waiting for the fact, so I will now have come to the near. I will have come to know how we will come to the near. I will am well. I will see how we will am well. I will see how I will am to go to the near. I will go to the near. I will am to the near. I would like to go to the near. I would like to am the vice-president. I would like to go to go to the near. I would like to know how I would like to go to go to the near. I would like to say that I will not know.

I make it difficult to do. (Bace) He is very at the risk of .. well. (Bace) He will not move to the (a) VIP Malaysia. (b) I will not move to the (a) VIP Malaysia? The defendant. (e.g., (b) I dove, I dove, I dove, I dove? I do not directly incur N? I do not directly? I do you you do you you you you? I do you you do you you you you you you directly do. (b) I will know about the (b) will know about the fact that there was a delay, and (c) I will know about the (b) I will know about it. I will know about the (c) I will agree with the National Assembly, and will make it possible to deliver it to the defendant. I will know about how you will do so. I will do so. I will know. I will know, I will know how you will reach the National Assembly's own meeting. I will prepare to pass it. I will know. I will you will know. I will you will you will do you will do. I will know. I will do. I will do. I will do. I will. I will. I will. I do. I will. I will. I will. I will... I will.......

E) N refers to the prosecutor's office, with respect to the situation immediately after the above call recording was sent to F, that "F was about how to see while standing at the end of time," "F demanded Cheongbu C to voluntarily resign the president of the group and would give disadvantages to the group as a whole or F without complying with the demand." This is because the demand was not justifiable, and it was stated that "I would like to know about whether it would be at a disadvantage to the group's business affairs and various pending issues," and the defendant also stated that "the other party from the prosecutor's office" (486,487 pages of the evidence record) can be known from the other party (if the company does not retire, it would be likely that G would have a big day). This is because there was a lot of fact that the defendant stated that it was so low that it would have been no more than 7 proof that it would have been able to talk about the contents of the recording to the extent that it would have been unconstitutional (74).

F) After the President’s resignation request for F, G company abolished programs that could be misunderstood by the President, such as codry programs, etc., scarficizing the President, which were broadcasted in M’s cable broadcasting channels at the time, and advertised to support “original economy,” which is the mother of the E government, and made efforts to eliminate the misunderstanding of the President and improve the relationship with the President (Evidence Records 486, 487, 798, 100, and 35 pages of a witness’s transcript). However, the Defendant and the President’s conspiracy and intent were made.

1) Relevant legal principles

A) In order to constitute a joint principal offender under Article 30 of the Criminal Act, a subjective requirement is the intent and objective requirement of joint processing, and requires the fact of implementation of a crime through functional control based on a joint doctor. In a joint-processing relationship with two or more accomplices who intend to jointly commit a crime, it is sufficient to legally demand a certain punishment, and there is an implied communication with each other as to joint implementation, directly or indirectly, and even if there is no direct evidence, it can be recognized by the circumstantial facts and empirical rules. However, even if there is no process of the whole conspiracy, if there is a combination of opinions either successively or implicitly through several persons (see, e.g., Supreme Court Decisions 2006Do1623, Dec. 22, 2006; 201Do9721, Dec. 12, 2011). The joint-processing intent does not necessarily require any prior conspiracy to commit a crime plan, and there is sufficient reason to establish a joint-processing relationship with each other (see, e.g., Supreme Court Decision 2007Do160.

B) In a case where a criminal defendant denies the criminal intent, which is a subjective element of a constituent element of a crime, the criminal intent cannot be objectively proved, and therefore, it is inevitable to prove the criminal intent by means of proving indirect or circumstantial facts related to the criminal intent in light of the nature of an object. Determination as to what constitutes an indirect or circumstantial fact ought to be based on normal empirical rule, based on a reasonable method of determining the link of facts by using a close observation or analysis (see, e.g., Supreme Court Decision 2016Do15470, Jan. 12, 2017).

2) Specific determination

In full view of the following facts and circumstances admitted by the aforementioned legal principles and evidence admitted as guilty, the Defendant and the President may sufficiently recognize that there was a combination of intent to commit the instant crime that F takes the G company’s management from the G company, and the Defendant also recognized that N’s act may be forced. Accordingly, the Defendant and the defense counsel’s assertion that the Defendant and the Defendant did not attract the instant crime with the president or that she did not have the intent to force the Defendant cannot be accepted.

A) The Defendant stated, in the prosecution and the court of the case of 2017 high-level 364, as to the situation at which he was instructed by the President in relation to the instant case, that “the President thickness, G companies are concerned.” The N Chairperson left the president’s position and told that he would be imprisoned if he was left in the management of G companies,” and that he would be instructed by the President to resign NF Chairperson or FF Vice Chairperson because he did not enter the president’s thickness,” although he was instructed by the President, it was thought that it was not correct to intervene in the management or personnel rights of private companies (Evidence evidence record 732,734, 735, 1024, 1025). The Defendant contact NF Chairperson on the day when he was instructed by the President to implement the direction of the President in order to implement the direction.

B) In the prosecution, the defendant was well aware that "C has a real influence because of the participation of the President in the process of decision making by the President in assisting the President," "C cannot be said to have a substantial influence on C secretary because its ripple effect may act in many places," "I do not specifically force or require it at that time," and "I think it may have been subjected to the resignation pressure or demand (Evidence Records 728, 731)," "(No. 728, 731)" and "(No. 6 of the aforementioned telephone recording file recorded by N), if there was any error in the government before it was done through experience in relation to the contents of the telephone recording file recorded by N, the fair level investigation or the National Tax Service's tax investigation, and it was possible to do so to the prosecution. At this time, I tried to make sure that N did not cause less damage to G companies and make it difficult to obtain the President's instructions or request for resignation from the President to the maximum extent possible, and did not know it to the effect that N did not carry out it out the President's request.

C) Specifically, the Defendant and the defense counsel denied the presidential public-private partnership or coercion by asserting that the Defendant did not consent to the president’s intention, and that he tried to process the president’s instructions by lawful means. However, as the Defendant voluntarily acknowledged by the prosecution several times, the Defendant’s involvement in the management and personnel administration of private enterprises itself is an unlawful act. Even if the Defendant expressed somewhat perfect or bypassing the president’s own decision in the process of delivering the president’s requirements to N, it is evident that the Defendant intended to achieve the president’s unlawful requirements. In addition, comprehensively considering all of the Defendant’s status, the Defendant’s act may also be sufficiently recognized that the Defendant may cause fear of unfair disadvantages if N or F did not comply with the Defendant’s request.

1) In performing his/her duties, no superior officer does not have the authority to order a subordinate officer to commit any unlawful act, such as a criminal act, etc. In addition, although the subordinate officer is obligated to obey a legitimate order of his/her superior, if the order is obviously unlawful or unlawful, it cannot be said to be an order of official instruction by punishing him/her, and thus there is no obligation to comply with such order (see, e.g., Supreme Court Decision 9Do636, Apr. 23, 199).

2) As seen earlier, the President’s instruction to leave the F in business management is clear that it infringes on the private company’s freedom of business management and the freedom of individual decision-making. In addition, the Defendant actively implemented the President’s instruction despite being sufficiently aware of the circumstances that the president’s instruction was unreasonable. Therefore, the Defendant’s act is justifiable on the ground that the Defendant’s act was in accordance with the president’s instruction, which is a superior officer, or that the Defendant did not have any possibility to expect lawful act. The Defendant and the defense counsel’

The reason for sentencing, while recognizing that the President’s instruction to attract F to the management of G company is illegal, the Defendant pressured N and F to comply with the above President’s demand by using the wide range of authority and status of the President and C secretary, who could directly and indirectly affect the management activities of the company, and by using the sense of burden and pressure to make viewers feel, and the company requested by the President or C secretary.

C. The secretary, along with the presidential secretary, is the president’s leader who assists the President in the nearest region. In the event that the President makes a wrong decision or direction, he is in a position to make a direct speech and has the duty to do so, and does not have the responsibility to avoid liability for the result solely for the reason that he/she had complied with the President’s instructions. Nevertheless, the Defendant fulfilled his/her duties as above without having fulfilled his/her duties as above, and rather than having recognized and seriously reflects his/her mistake in this court, he/she was leveled to rationalize his/her act, such as merely delivering the presidential requirements or providing assistance to the G company. However, even if considering the foregoing circumstances, the most important responsibility for the instant crime is to be considered to have ordered the Defendant to commit the instant crime. The Defendant’s act, which was a police officer on July 2, 2013, did not require NF to resign two times more than a certain time, but rather requires NF’s direct and indirect cooperation in the process of questioning and questioning the circumstances that the Defendant had requested NF to voluntarily.

In full view of all kinds of sentencing conditions shown in the pleadings of the instant case, such as equity in the case of a judgment at the same time with a crime of refusing to measure a noise level, age, character and conduct, environment, motive, means and consequence of the crime, etc., which are unfavorable or favorable to the Defendant, and other circumstances after the crime, the punishment shall be determined as ordered.

Judges

Judge Kim Jae-han

Judges Gyeong-dong

Judges, Assistants

Note tin

1) To the extent that the facts charged against the Defendant do not disadvantage the Defendant’s exercise of the Defendant’s right to defense, without the amendment process of indictment

The amendment was made in accordance with the facts.

심급 사건

서울중앙지방법원 2018.4.6.선고 2016고합1289

-서울고등법원 2018.7.18.선고 2018노1093

-대법원 2018.10.25.선고 2018도12121

참조조문