The meaning of “business” as referred to in the crime of interference with business, and whether the business performed merely as part of personal daily life constitutes a business subject to protection of the crime of interference with business (negative)

Article 314 of the Criminal Act

Supreme Court Decision 2013Do3829 Decided June 14, 2013 (Gong2013Ha, 1286)

Defendant

Defendant

Attorney Jeong Jin-hun

Daejeon District Court Decision 2013No2153 Decided February 13, 2014

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

Judgment ex officio is made.

1. The summary of the instant conjunctive charges is as follows: “The Defendant interfered with Nonindicted Party 1’s driving service by force from October 22, 2012 until October 22, 2012 by force until October 22, 2012, on the ground that Nonindicted Party 1 without permission parked (vehicle number omitted) vehicle in the first floor parking lot of the Daejeon Sung-gu Daejeon ( Address omitted) building on October 21, 2012.”

Based on its stated reasoning, the lower court found the Defendant guilty of the instant conjunctive charges added by the lower court.

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

A. “Business” under Article 314 of the Criminal Act refers to a business or business that continues to be engaged in under an occupation or other social status (see Supreme Court Decision 2013Do3829, Jun. 14, 2013). Moreover, business performed as part of a mere personal daily life that cannot be deemed based on an occupation or social status cannot be deemed as a business subject to protection of the crime of interference with business.

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

(1) As a main agent, Nonindicted Party 1 was parked in the above building parking lot in the vicinity of the vehicle after operating the said vehicle to a high speed bus terminal located in Daejeon Sung-gu in order to board the rapid bus for personal use.

(2) The foregoing vehicle operated by Nonindicted 1 is a private vehicle registered in the name of Nonindicted 2, a part of Nonindicted 1’s money, and there is no evidence to deem that the said vehicle was related to the business or that Nonindicted 1 was driving the said vehicle for his own business even after examining the record.

(3) When the Defendant discovered the foregoing vehicle parked in a state where the identity of the driver or passenger, and whether the store in the above building is not available, the Defendant left the vehicle with the vehicle without permission, and combined the vehicle with the front driver and the hand knife with the hacks.

C. Examining the above facts in light of the legal principles as seen earlier, it is difficult to readily conclude that Nonindicted 1 parked the said vehicle in a building as part of the Defendant’s occupational or social status continuous business or business activities at the time of the Defendant’s act, or that Nonindicted 1 attempted to operate the said vehicle thereafter. Rather, it is difficult to conclude that the said vehicle is merely driving a vehicle due to a mere personal act. Accordingly, it is difficult to view that Nonindicted 1’s driving with respect to the said vehicle constitutes a business subject to protection of the crime of interference with business, and it is difficult to view that the

Nevertheless, the lower court did not sufficiently examine whether Nonindicted 1’s driving constitutes a business subject to protection of the crime of interference with business and found the Defendant guilty of the instant conjunctive charges solely for the reasons indicated in its holding. In so determining, the lower court erred by misapprehending the legal doctrine on the crime of interference with business

3. Meanwhile, the part of the judgment of the court below as to the damage of property, which is the primary charge of the instant preliminary charge, should also be reversed.

4. Therefore, without examining the 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)