Defendant

Defendant

Isi-style (prosecution) and sexual erocon (public trial)

Attorney Lee Jong-il

Jeju District Court Decision 2016 High Court Decision 251 Decided July 1, 2016

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

The Defendant did not bring some of the materials to the △△△△△△△△△-△△△△△ (hereinafter “instant land”) at the Jeju-si, ○○○○-dong, △△△△△△, which was owned by the victim, but was merely a mere fact after the completion of construction materials brought about while carrying out the mold construction among the new construction of underground storage on the instant land. Nevertheless, the lower judgment convicting the Defendant of the instant facts charged was erroneous.

B. Legal principles

Since the Defendant had a lien on underground warehouses newly constructed on the instant land (hereinafter “the instant building”), the Defendant’s act constitutes a justifiable act that does not go against the social norms. Nevertheless, the lower court erred by misapprehending the legal doctrine that found the Defendant guilty of the instant facts charged.

[On the other hand, the defendant's defense counsel presented evidence on March 23, 2017, the defense counsel's opinion on April 24, 2017, and the summary of oral argument on August 1, 2017, that there is no victim's business to be protected in the crime of interference with business. However, this cannot be viewed as legitimate grounds for appeal since a new argument was made after the lapse of the period for submitting the statement of reasons for appeal, and even if ex officio examination is conducted, the court below and the trial court lawfully adopted and investigated the evidence, and stated that "The victim is unable to perform other construction works entirely due to the lack of construction materials by the defendant" at the investigative agency (the investigative agency page 13 of the investigation record), and the defendant testified that "the victim cannot have installed a new window construction and entrance construction work after the mold construction work after the mold construction work, and the defendant cannot be seen as having completed the construction work of the building in this case, with the size of the land in this case exceeding 94 square meters (the construction work price of this case, 2520 square meters).

C. Unreasonable sentencing

The punishment of the lower court (including a fine of 400,000 won) is too unreasonable.

2. Determination

A. As to the assertion of mistake of fact

1) Relevant legal principles

The force of the crime of interference with business does not necessarily mean only the force that directly terminates to a person engaged in business, but may include acts that make it impossible or considerably difficult for a person to freely act by creating a certain physical condition sufficient to suppress a person’s free will (see Supreme Court Decision 2009Do5732, Sept. 10, 2009, etc.).

2) Determination

In light of the above legal principles, even if the Defendant did not remove construction materials after the completion of the mold construction as alleged by the Defendant, it is reasonable to view that the Defendant’s act constitutes force on obstruction of business by making certain physical conditions sufficient to suppress the victim’s free will and making the victim impossible or considerably difficult to act. Therefore, the lower court’s judgment convicting the Defendant of the charge of this case is justifiable, and the Defendant’s assertion that there was no interference with the victim’s business by force on other premise that the Defendant did not interfere with the victim’s business by force.

B. As to the misapprehension of legal principles

1) The judgment of the court below

The Defendant asserted the same purport as the grounds for appeal in this part of the judgment below, and the court below rejected the Defendant’s assertion as follows.

In light of the fact that there is a dispute over construction cost, it is difficult to evaluate the Defendant’s act as an act that can be accepted in light of the overall legal order or the social ethics or social norms, and that it does not violate the social rules as stipulated in Article 20 of the Criminal Act.

2) Determination of the immediate deliberation

A) Relevant legal principles

The term "act which does not violate social norms" under Article 20 of the Criminal Act refers to an act which is permissible in light of the overall spirit of legal order or the social ethics or social norms surrounding it, and whether certain act is justified as an act which does not violate social norms, and thus, the illegality of which is excluded should be determined individually by examining and reasonably under specific circumstances. Thus, to recognize such legitimate act, the requirements such as legitimacy of the motive or purpose of the act, reasonableness of the means or method of the act, balance of the protected interests and the benefit of infringement, urgency, and supplementary nature that there is no other means or method than the act (see Supreme Court Decision 2004Do5628, Apr. 27, 2006, etc.).

B) Determination

In addition to the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, the court below is just in holding that the defendant's act does not constitute a justifiable act on the grounds as stated in its reasoning, and there is no error in the misapprehension of legal principles as argued by the defendant. Therefore, the defendant's assertion on this part is without merit.

① Even if the Defendant has a claim for the construction cost against the victim, the Defendant is only able to exercise the right of retention only on the instant building, and the instant land has no correlation with the Defendant’s claim for the construction cost, and the Defendant may not exercise the right of retention on the instant land.

② Since the Defendant could sufficiently take other legal measures to pay the construction cost, it is difficult to deem that the Defendant’s above act was reasonable or complementary to the means or methods.

C. Regarding the assertion of unreasonable sentencing

In our Criminal Procedure Act, which takes the principle of trial-oriented and directness, where there exists no change in the conditions of sentencing compared to the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect it (see Supreme Court Decision 2015Do3260, Jul. 23, 2015).

Although the defendant has no record of punishment for the same crime, and the defendant removed the interference by himself after about two months, the court below is not deemed to have exceeded the scope of reasonable discretion imposed by the court below in full view of the defendant's age, character and conduct, environment, motive and circumstance of the crime of this case, means and method of the crime of this case, circumstances after the crime of this case, etc., and all of the sentencing factors in the process of the trial and the records of this case, such as the defendant's age, character and conduct, environment, motive and circumstance of the crime of this case, method and method, etc., and the circumstance after the crime of this case, etc.

3. Conclusion

Therefore, the Defendant’s appeal is without merit, and it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition by the court below (However, since it is obvious that the “○○○○○○○○ Dong △△△△△△△△△” in the second criminal facts of the judgment of the court below is a clerical error in the “○○○○○ Dong ○○-dong △△△△△△△△△△△△△△”, it is to rectify

Judges Park Han-hee (Presiding Judge) Promotion