2018No1093 Attempted coercion

A

Both parties

The number of public prosecutions and public trials held for the purpose of maintaining such status.

Attorney B

Law Firm BE

Attorney BF, BG, H, BI, BJ, BK, BL

Seoul Central District Court Decision 2016Gohap1289 Decided April 6, 2018

July 18, 2018

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts, misunderstanding of legal principles

A) The Defendant and N’s recording file constitutes illegally collected evidence, not the N, a dialogue party, but the F, a third party.

B) On July 2013, 2013, the Defendant did not have any intimidation or n at the hotel hotel of the Defendant, and the content of telephone conversations with N in the same month did not constitute intimidation, as it did not constitute intimidation, on the basis of the N’s questioning to verify the truth of the President. Only mentioning C’s influence, investigation, or investigation possibility, the mere fact that the Defendant mentioned the influence, investigation, or investigation possibility does not constitute intimidation.

C) It was merely a advice to minimize the loss of the G company caused by the President’s illegal intent, and there was no fact or no intention of coercion with the President in collusion with the victims to cause them to engage in an unobligatory act, such as leaving them out in the management line.

D) Taking into account that the extinguishment of the president and large companies may have a significant impact on the economy, it constitutes C’s duties to smoothly coordinate the relationship with the president so that G companies do not take into account the past conditions of other companies. Even if the president’s instructions were illegal, the Defendant was trying to lawfully perform the instructions within his/her duties, so there was no intention of coercion, and this is dismissed as a justifiable act arising from his/her duties.

E) In order to prevent G companies from suffering from unnecessary difficulties, the Defendant did not have the possibility of expectation for other acts as C, as well as delivering the presidential instructions.

2) Unreasonable sentencing

The punishment of the court below (two years of suspended sentence for one year of imprisonment) is too unreasonable.

(b) An inspection;

The sentence of the court below is too unhued and unfair.

2. Determination

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

1) Whether it constitutes illegally collected evidence

The purport of Article 3(1) of the Protection of Communications Secrets Act that prevents a third party from recording or listening to conversations that is not open to the public is that a third party who does not take part in the conversation should not record or listen to the speech between others. The recording of the contents of the conversation does not violate Article 3(1) of the same Act, but in the case of a third party, the recording of the contents of the conversation with the consent of one of the parties to the telephone conversations would not be in violation of Article 3(1) of the same Act (see, e.g., Supreme Court Decisions 2002Do123, Oct. 8, 2002; 2006Do4981, Oct. 12, 201).

According to the evidence duly admitted and examined by the court below, N directly recorded the conversations with the Defendant on July 2013 in order to verify it to F and confirm it to F, and N deleted the above recording file at that time, and on some circumstances, N stated that F was well aware of whether it recorded the above recording file. As such, insofar as N, who was a party to a telephone conversation with the Defendant, did not make a recording, it cannot be said that Article 3(1) of the Protection of Communications Secrets Act is violated unless the Defendant and the third party to a telephone conversation did not make a recording.

Therefore, the defendant's above assertion is without merit.

2) Whether the crime of coercion constitutes intimidation

As to the Defendant’s assertion to the same purport, the lower court determined that the Defendant’s act constituted intimidation of coercion, by taking account of the specific facts and circumstances acknowledged by the evidence duly adopted and examined by the lower court, requiring F to withdraw from the position of the President and CF secretary who can exercise occupational or de facto influence on corporate activities, thereby demanding F to leave the victim N and F to leave in the management log, and causing fear that the victims would suffer from tangible and intangible disadvantages if the victims do not comply with the above demand.

Examining various facts and circumstances admitted by the court below in light of the records, the above judgment of the court below is just and acceptable, and there is no error of misconception of facts or misunderstanding of legal principles as to intimidation alleged by the defendant.

3) Whether there was a conspiracy and intent with the President

As to the Defendant’s assertion to the same purport, the lower court determined that the Defendant was aware of the specific facts and circumstances recognized by the evidence duly adopted and examined by the lower court, by sufficiently recognizing that there was a combination of intent to commit the instant crime between the Defendant and the President that would attract F to the management of G company, and that his act against N may constitute coercion. The lower court also determined that the Defendant was aware of the fact that the Defendant had been forced.

Examining the various facts and circumstances admitted by the court below in light of the records, the above judgment of the court below is just and acceptable, and there is no error of law by mistake of facts or misapprehension of legal principles concerning the defendant's conspiracy or intention.

4) Whether illegality is denied as a justifiable act due to business affairs

A) Relevant legal principles

Whether a certain act constitutes a legitimate act as a ground for excluding illegality

To be recognized as a justifiable act, the following must be met: (a) legitimacy of the motive or purpose of the act; (b) reasonableness of the means or method of the act; (c) balance between the protected legal interests and the infringed legal interests; (d) urgency; and (e) supplementary requirements that there is no other means or method than the act (see, e.g., Supreme Court Decision 200, 3; 99Do4273, Oct. 10).

The illegality of an act by a superior’s lawful order in the course of performing his/her duties shall be excluded pursuant to Article 20 of the Criminal Act as a justifiable act. However, the illegality of a criminal act committed under his/her superior’s order cannot be avoided solely on the ground that he/she was aware of the order of his/her superior when the criminal act was committed in accordance with an unlawful order of his/her superior (see, e.g., Supreme Court en banc Decision 96Do3376, Apr.

B) Determination

According to the following facts and circumstances acknowledged by the evidence duly admitted and investigated by the court below, the illegality of the defendant's act is not denied as a legitimate act according to his duties or an official order. Thus, the above argument by the defendant is without merit.

(1) The secretary of C shall be the position established under Article 14 of the Government Organization Act and Article 4 of the Organization of the Presidential Secretariat.

Under this, the Minister of Economic and Financial Affairs, the Secretary of Industrial and Trade Resources, the Secretary of Small and Medium Enterprises, the Secretary of National Land and Transport, the Secretary of the Ministry of Food and Fisheries, and the Secretary of Maritime Affairs. The main duties of the Secretary of Economic and Financial Affairs are the overall control and coordination of the economic and financial affairs, the macroeconomic (economic growth, price, employment, and balance), the budget and taxation, the financial management, the national treasury, the procurement, international financing and economic cooperation, the consultation and coordination of pending issues in public institution policy policies, financial policy (market, industry, and supervision), the consultation and coordination of business affairs related to the company and financial restructuring, the consultation and coordination of competition, consumer policy and pending issues, the operation of economic-related meetings, and the secretary of Industrial and Trade Resources is in charge of the affairs of industry, resources, energy, trade, foreign investment, patent policy and pending issues, the planning and coordination of major policies related to commerce, the secretary of Small and Medium Enterprises, the consultation and coordination of policies on small and medium enterprises, traditional markets and pending issues, and the affairs of the main policy.

② However, even if the above specific duties are carried out by the C secretary, it is difficult to interpret that the relationship with the President is included in the contents of the duties so that it does not take place in a difficult situation in the event of the President and the large enterprise, as argued by the Defendant.

The items of ‘consultation and coordination on affairs related to the adjustment of the financial structure of the company and the financial secretary, or consultation and coordination on the industrial policies and pending issues of the Minister of Trade, Industry and Energy, which seem to be close to the above affairs, may be included, but it is difficult for the President to include in this case the cases where he/she consultss on and mediates conflicts due to private incompetence or dissatisfaction with the private company.

③ As alleged by the Defendant, it is practically necessary to coordinate with the President in order to prevent adverse effects on the economy by taking into account the influence on the domestic economy of large enterprises, and there is no aspect that the Defendant, as a secretary, has reached the crime of this case with the intent to aid and aid the difficulties of the G company.

However, it cannot be justified in any case to put the Defendant at a disadvantage to, or interference with, an individual company solely on the ground that the former president’s own issues or errors are not favorable to himself/herself. Therefore, even if his/her intent is well-grounded, it is merely a means to enforce the former president’s illegal order, and thus, it cannot be deemed that illegality is excluded on the ground that he/she was unaware of his/her superior’s order.

④ The former president, taking advantage of his/her position, demands the victim F to withdraw from the vice-chairperson of a G company and take advantage of his/her position to leave in the management line, and threatens the victims to be at risk of suffering from an intangible and intangible disadvantage if the victims fail to comply with such demands, the act of intimidation does not meet all the requirements of justification of the motive or purpose, reasonableness of the means or method, balance between the protected legal interest and the infringed legal interest, urgency, and any other means or method.

(5) In addition, it is clear that the defendant had the intent to achieve the illegal purpose of the former president E, and it should be deemed that there was the intention of coercion as long as the defendant mentioned the possibility of investigation by an investigative agency and informed the victims of harm and injury.

5) Whether there was no possibility of expectation

The direction that the former president, on the ground of personal appraisal of G companies, left the F, a vice president in the management line, is clear that it infringes on the freedom of individual decision-making and the freedom of management of private enterprises guaranteed under the Constitution. As long as the Defendant fully recognized the circumstances that the president’s direction was unfair, it is obligated to point out the problems or take other measures and assist the president lawfully. Nevertheless, the Defendant actively carried out the president’s order without taking such measures. Therefore, it cannot be said that the Defendant’s act was justifiable solely on the ground that the Defendant’s act was in accordance with the direction of the president, who is a superior, or that there was no possibility that the Defendant would have lawful act.

6) Sub-decisions

Therefore, the defendant's above mistake of facts or misapprehension of legal principles cannot be accepted.

B. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

In light of the circumstances unfavorable to the Defendant, the lower court took into account (i) the following factors: (ii) the Defendant: (iii) recognizing the illegality of the presidential direction to attract F to the G company’s management; (iv) having the broad authority and position of the President and C secretary; and (v) pressured the N and F to comply with the President’s demand by using a sense of pressure and pressure that could have a significant impact on the company’s management activities; (ii) the C secretary is a position to give a direct advice to the President when he makes a wrong decision or instruction with the appearance of the President who assists the President in the most opposite side; (iv) he has an official duty to do so; and (iii) the Defendant has a duty to avoid liability for the outcome solely on the ground that he had not complied with the presidential direction; (iv) the Defendant fulfilled the presidential’s illegal order with the time limit; and (v) rather than recognizing and seriously reflecting the error in the court of the lower court’s trial, the Defendant merely delivered the requirements of the President’s request to G company, or was an act for the purpose of assisting the G company.

Meanwhile, the lower court, in light of the circumstances favorable to the Defendant, took into account (i) the fact that the Defendant directed the Defendant to commit the instant crime, (ii) the Defendant’s act of taking account of the fact that the Defendant took place in the process of responding to N’s continued questions after obtaining a phone call from N which was received by F upon F’s request, and (iii) the circumstance in which the Defendant directly or indirectly demanded N or F to resign is not confirmed, and as a result, the Defendant’s act of taking into account the fact that the Defendant was attempted to commit the instant crime.

In light of the fact that there is no special change in circumstances that can be evaluated differently in the appellate court as to the sentencing conditions that are favorable or unfavorable to the defendant, the sentencing of the lower court cannot be deemed to be unfair or unreasonable because the sentencing of the lower court is too unreasonable or too unreasonable.

Therefore, each of the defendant and prosecutor's arguments on unreasonable sentencing is without merit.

3. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is dismissed.

The presiding judge, Kim Gung-gi

Judges Lee Jin-hee

Judges Min Il-young