2014 Highest 5083 Meritoriouss

A

More than a record (prosecution), Kim Jong-tae (Trial)

Law Firm B, Attorney C, D

November 26, 2014

A defendant shall be punished by imprisonment for not less than eight months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive, and the defendant shall be ordered to provide community service for 80 hours.

Criminal facts

From November 1, 2011 to December 17, 2013, the Defendant served as an employee at the F General Social Welfare Center located in Northern-gu, Busan.

The Defendant, the chief director of the above welfare center, decided that the Defendant used the above welfare center’s budget arbitrarily, and had the intent to collect money from the victim. On December 17, 2013, the Defendant, at the above welfare center’s office, called “the victim’s demand to pay KRW 500 million” to the victim, and said, “I will report the embezzlement of public funds to the police station and the Gu office.”

As above, the Defendant was trying to attack the victim and take 500 million won from the drinking victim, and the victim did not have the intent to refuse it.

Summary of Evidence

1. The police statement concerning G;

1. Recording notes;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 352 and 350(1) of the Criminal Act; the choice of imprisonment

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Social service order;

Article 62-2 of the Criminal Act

Judgment on the Defense Counsel's argument

1. Summary of the assertion

Since the Defendant stated that he would report the victim's mistake in the process of expressing and resisting the victim, it cannot be deemed as a intimidation in the crime of intimidation. The Defendant demanded large amount of KRW 500 million in order to clarify the Defendant's intent not to compromise the victim's return or opinion, and was not a intimidation to receive the above money from the victim. Accordingly, the victim did not have the fear of fear.

2. Determination

Intimidation, the means of the crime of intimidation, refers to the threat of harm and injury that is likely to be hot enough to restrict the freedom of decision-making or to obstruct the freedom of decision-making. A threat of harm and injury is sufficient if, even if not explicitly stated, a perpetrator, based on his/her occupation, status, etc., wishes to have the other party aware that it would result in any malicious conduct. Moreover, a threat of harm and injury is also a threat of harm and injury even in cases where the perpetrator demands the delivery of property or property benefits, and the other party does not comply with the demand if he/she does not comply with the demand (see, e.g., Supreme Court Decision 2010Do1374, Apr. 11, 2013). Moreover, even if the offender has a strong intention to realize harm and injury, the threat of harm and injury does not affect the sexuality of a crime of public conflict.

In this case, the following facts and circumstances acknowledged by this court’s lawful adoption and investigation of evidence (i.e., the Defendant, as the head of the F comprehensive social welfare center, demanded the victim to raise salary and salary at around November 201, 201; however, the Defendant refused such demand; rather, the Defendant presented accounting data, etc. to the victim during an interview with the victim on December 17, 2013, and demanded that the victim report an embezzlement of 50 million won as above; at the time of 200 million won, the Defendant would not be subject to criminal punishment (i.e., “the victim would be subject to 30 million won if he reported,” and (ii) the victim would not be subject to criminal punishment by her husband, and (iii) the Defendant would not be subject to criminal punishment by her embezzling out of 50 million won if he reported again, and (iv) would not be subject to criminal punishment by her husband, and thus, would not be subject to criminal punishment by her statement that he would be subject to such criminal punishment.

3. Conclusion

Therefore, the defense counsel's above assertion is not accepted.

The reason for sentencing is that the defendant demanded a large amount of money by threatening the victim, and the denial of the crime is not against the victim. However, there is a need for strict punishment in light of the fact that the defendant only demanded one money in the course of interview with the victim and does not threaten the victim several times with strong intent, and the crime is attempted, and the defendant seems to have committed the above behavior with the intent to correct the error in the course of the withdrawal of the welfare center, and there is no criminal history exceeding the same kind of fine, and there is no other criminal history against the defendant, and the punishment is determined as ordered (the sentencing guidelines are not applicable to attempted crimes) by taking into account various sentencing factors such as the defendant's age, character and behavior, environment, motive and circumstance of the crime, and circumstances after the crime (the sentencing guidelines are not applicable).

Judges Lee Dong-won