[1] Requirements for establishing the crime of interference with business by omission

[2] In a case where the Defendant: (a) concluded a molding construction contract necessary to construct a warehouse on the ground with Gap; (b) completed the construction; and (c) was prosecuted for interfering with Gap’s new warehouse construction business by force by neglecting construction materials stockpiled on the above land and preventing the construction site on the ground that Gap did not pay the construction cost, the case holding that the judgment below convicting the Defendant of the charges of interference with business by omission was erroneous in the misapprehension of legal principles as to the establishment of crime

[1] In order to establish a crime of omission by omission, such as the crime of interference with business, a crime of omission should be deemed to be identical to a crime of omission.

[2] In a case where the Defendant concluded a molding construction contract necessary for constructing a warehouse on the ground with Gap and completed the construction, and Gap was indicted for interfering with Gap's business of constructing a warehouse by force for the reason that he did not pay the construction cost, the case holding that the lower court erred by misapprehending the legal principles as to the establishment of crime of interference with business by omission, which found the Defendant guilty on the ground that, although the Defendant did not merely remove construction materials for the purpose of receiving construction cost, even if it did not constitute construction materials for the purpose of receiving construction cost, it did not constitute an act of obstructing Gap's business as an act of interfering with business by force and obstructing Gap's business as an act of obstructing the additional construction work after the completion of construction cost, and thus, it cannot be deemed that the Defendant did not have any criminal value equivalent to Gap's active interference with Gap's business.

[1] Articles 18 and 314(1) of the Criminal Act / [2] Articles 18 and 314(1) of the Criminal Act, Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2003Do80 Delivered on April 28, 2006

Defendant

Defendant

Attorney Lee Jong-il

Jeju District Court Decision 2016No442 decided August 10, 2017

The judgment below is reversed, and the case is remanded to Jeju District Court Panel Division.

The grounds of appeal are examined.

1. The summary of the facts charged of this case is that the defendant concluded a contract with the victim for the mold construction necessary to build a warehouse on the ground of the land of this case and completed the construction, and the victim interfered with the victim's business by force by obstructing the construction of new warehouse construction of the victim's warehouse by preventing the construction site without putting up construction materials accumulated on the land of this case on the ground that the payment of the construction cost is not made.

2. The lower court found the Defendant guilty of the instant facts charged, on the ground that, in view of the fact that the Defendant did not partially withdraw construction materials to obstruct the victim’s additional construction work and that the victim could not proceed with the additional construction work, the Defendant should be deemed to have obstructed the victim’s business by force.

3. However, the lower court’s determination is difficult to accept for the following reasons.

In order to establish a crime committed by omission, such as the crime of interference with business, a crime committed by omission must be deemed to be identical to a crime committed by omission (see Supreme Court Decision 2003Do80, Apr. 28, 2006).

Examining the reasoning of the lower judgment and the record, the fact that the Defendant did not block the construction site by stockpiling part of the construction materials on the land of the victim, but merely did not remove the construction materials which the Defendant previously stockpiled for his own construction work after completion of the construction work.

Although the Defendant did not follow the above construction materials for the purpose of receiving the construction cost, it cannot be deemed that the Defendant’s act of not simply neglecting the construction materials after the completion of construction is an act of interference with business that interferes with the victim’s additional construction work by force and has an equivalent value to the active act of interference with the victim’s work as an act of interference with business.

Nevertheless, the lower court found the Defendant guilty of the instant facts charged solely based on its stated reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of the crime of interference with business

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)