2018No452 Intimidation, intimidation

A (55 - 1) and journalistss;

Both parties

Jeonju District Court Decision 2017Ma55 decided March 27, 2018

October 5, 2018

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,00,00.

Defendant who has converted 100,000 won into one day when the above fine has not been paid;

shall be confined in a workhouse.

In order to order the provisional payment of an amount equivalent to the above fine.

Of the facts charged in the instant case, each of the facts charged shall be acquitted.

The summary of the acquittal part in this judgment shall be publicly notified.

1. Summary of the grounds for appeal;

A. The defendant (the guilty part)

Although the Defendant did not have any intention to commit an offense, the Defendant merely voluntarily paid money to the Defendant by B and C even though he did not demand or intimidation to B, B and C. Nevertheless, the lower court erred by misapprehending the legal doctrine and misapprehending the legal doctrine.

(b) A prosecutor;

(1) misunderstanding of facts and misapprehension of legal principles (not guilty part)

The Defendant’s remarks referred to as the victim are the threat of harm and injury in the crime of intimidation that the victim would cause an doubt that the operation of the company working for the victim would be hindered if the victim did not comply with the Defendant’s demand for payment of money. Nevertheless, the lower court acquitted the Defendant of this part of the indictment room, by misapprehending the legal principles and erroneous determination of facts.

(2) Unreasonable sentencing

The sentence of the lower court (a fine of KRW 5 million) is too unhued and unreasonable.

2. Judgment on the Defendant’s assertion

A. Relevant legal principles

Whether an act of a press company's employees in filing a report on an unfavorable article against news reporters constitutes a threat of harm and injury as a means of a crime of public conflict shall be carefully examined and determined on the basis of the relationship and position between the person who made such a request and the person who received such request, the social influence of the press company, the details of economic benefits that the party intends to seek to seek, the background before and after such a request, the relevant article and its news in the process, the size of the influence of the relevant articles on the other party's interests, the degree of correlation between the relevant articles and the relevant articles, the degree of harm between the disadvantageous articles and the requested money, and the specific speech and behavior suggesting disadvantage (see Supreme Court Decision 201Do7095, Dec. 10, 2002).

Meanwhile, in a criminal trial, the burden of proving the facts constituting the offense charged is to be borne by the public prosecutor, and the recognition of the offense of conviction is based on evidence with probative value, which can lead the judge to have a serious doubt as to the facts charged, to the extent that there is no reasonable doubt. If there is no such evidence, even if there is doubt that the defendant is guilty, it is bound to be sold in the interest of the defendant (see Supreme Court Decision 2005Do8965, Feb. 10, 2006, etc.).

B. As to the conflict between B and B

(1) Summary of the facts charged

On May 16, 2010, the Defendant: (a) informed the Victim B (35 years of age) who was a police officer belonging to the Chang Chang Police Station in the form of Go Chang Police Station; (b) during the process of drinking alcohol on the front of the Go Changwon-gun's emergency room located in the Go Changwon-gun, Go Changwon-gun; and (c) sought a device box in the Go Chang Police Station to the effect that he used violence to D in the process of suppressing D, who was under the influence of drinking alcohol on the front of the Go Changwon-gun's emergency room located in the Go Changwon-gun, Changwon-gun; and (d) sought a device in the shape of the Go Changwon Police Station to the effect that “the police officer in the shape of the police station was a person who was a police officer of the victim, and was frighted to the victim by gathering the victim as if the victim reported the assault case.

Since then, on May 2010, the Defendant received the above gold source from F, the superior officer of the victim, who received cash delivery of KRW 1 million from the victim, by leaving him/her undergo disciplinary action, if he/she reported to the media in front of the Defendant’s office located in the Gowon-gun, Gowon-gun, Gowon-gun, Gowon-gun, Gowon-gun, Gowon-gun, Gowon-gun, and then received the said gold source from the victim

Accordingly, the defendant received property by threatening the victim.

(2) Determination

The court below found the defendant guilty of this part of the facts charged by taking full account of the evidence in its judgment.

However, in light of the legal principles as seen earlier, the court below and the court below found the following facts and circumstances that can be acknowledged based on the evidence duly adopted and investigated by the court below, it is difficult to view that only the evidence submitted by the prosecutor submitted by the prosecutor that the defendant gave harm to B, and that the defendant was given a cash of one million won from drinking B, and there is no other evidence to acknowledge this otherwise. Nevertheless, the court below found the existence of the crime of attack against the facts charged in this part as to this part was erroneous in the misunderstanding of facts and misapprehension of legal principles, and the above assertion by the defendant pointing this out is with merit.

(A) The act of a reporter itself cannot be deemed as a form of intimidation, which is the constituent element of the crime of attack, and the Defendant’s expression that “the police officer in the shape zone at May 16, 2010 sees why the police officer in charge of a police box sees us at the time of the people.” It cannot be readily concluded that it is a threat of harm and injury subject to criminal punishment beyond the scope of coverage.

(B) On May 16, 2010, the Defendant asserted that he visited the pattern zone where B did not assault D, but that other police officers visited to gather news by receiving the information of the instant case between the suspect’s hand, who took the lock during the arrest process. When the Defendant was found in the shape zone, the police officers E who responded to the Defendant did not demand money for B at the lower court did not request the money for the case at the time, and made a statement to the effect that he asked only for the case where G and E called out or called out (109 pages of the trial record). Ultimately, it is difficult to view that the Defendant visited the shape zone for the purpose of gathering the case of assaulting B on May 16, 2010.

( 다 ) B은 원심과 당심에서 ' 2010 . 5 . 16 . 피고인과 전혀 모르는 사이였고 이전에 피고인의 얼굴도 본 적이 없으며 , 피고인이 기자인 사실도 몰랐다 . ' 라고 진술하였다 . 피 고인은 2010 . 5 . 16 . 모양지구대를 방문하여 B이 아닌 E과 대화를 하였는데 , B은 당심 에서 E으로부터 ' ( 피고인이 ) 엊그제 , B의 사건이 발생하기 이틀 전에 발생한 사건과 관 련해서 왔다 . ' 고 들었다고 진술하였다 . 결국 피고인이 2010 . 5 . 16 . 직접적으로 , 또는 피고인을 응대하였던 E을 통해서 간접적으로라도 B에게 별다른 해악의 고지를 한 것 은 없었던 것으로 보인다 .

(D) B viewed the Defendant as “as to the circumstances in which the Defendant had been given money at the lower court,” and the police officers of the patterned district unit enter the Defendant at the time when he was paid a large number of people. In that situation, the first head of the team (F) and the first head of the team and the first head of the team were to enter as to whom he was the Defendant, and to whom he was the Defendant, the first head of the team and the first head of the team were to be reported to the press, so he would be able to prevent him from doing so, and then we would know about the next head of the team and the first part of the Defendant who was flick, and we would know about the fact that he was flick, and we would like to simply call up 00,000 won for the post head of the team to be 00,000 won, and then I think that the first head of the team was 00,000 won.

In addition, as for the reasons why F has delivered money to the defendant at the court below, only the fact that our employees assaulted against the civilian, is likely to be a press report, and the issue is likely to arise, it was processed to prevent the press report."" (the defendant)", and since there is no possibility that the press report is likely to be made, the head of the team is responsible as the team and there is a usual space. (8 pages of the trial record), and the members of our team were collected to hold a meeting, and the fact that the defendant did not voluntarily make a statement in consideration of these days and should be responsible for the Korean team, and the head of the team is not responsible for the activities of the F. The purport of this article is that the team leader made a statement to the effect that he made a statement in consideration of the above activities of the defendant (the first day of the trial record).

C. As to the conflict to C

(1) Summary of the facts charged

On April 2013, the Defendant sought from the victim C (the age of 58) who was a fluort flag, that the victim damaged nearby forests in the process of widening the victim’s house.

Accordingly, the Defendant, along with H, posted the site to the victim’s house located in the Go Chang-gun, North Korea in April 2013, and thereafter, revealed that the victim himself/herself was his/her reporter, and thereafter, made a fine to the victim before the victim, with the victim’s awareness that he/she was the reporter, and if he/she damaged the forest, he/she may be punished. The Defendant, at the same time, put the victim frighted to the victim without reporting to the competent authority in a manner that it appears to have the same attitude as reporting the damaged forest without reporting to the competent authority.

On April 2013, the Defendant was given money from the victim’s seat, who was sent 50,000 won to 50,000 won to the Defendant, on a motor vehicle parked in front of a singing room in the Go Chang-gun, Go Chang-gun, Go Chang-gun, Chang-gun, Go Chang-gun, who was sent 50,00 won to the Defendant, by making it known that the forest would be damaged by the press reports, etc. as above.

Accordingly, the defendant received property by threatening the victim.

(2) Determination

The court below found the defendant guilty of this part of the facts charged by taking full account of the evidence in its judgment.

However, examining the following facts and circumstances that can be recognized by the court below and the court below based on the evidence duly adopted and investigated, in light of the legal principles as seen earlier, it is difficult to view that the evidence submitted by the prosecutor alone, which the defendant, caused harm to C, and received KRW 500,000 from drinking C, and there is no other evidence to prove otherwise. Nevertheless, the court below acknowledged the establishment of the crime of attack as to this part of the facts charged, and there is an error in the misunderstanding of facts and misapprehension of legal principles, and the above assertion by the defendant pointing this out is with merit.

(A) On April 2013, C, from the police to the trial of the court, stated that the Defendant sought C’s house, and that C’s house was in line with C’ at this house, and that C was in line with D’. The purpose of Defendant C’s house was to confirm whether C’s house was in line with C’s examination comments on the Defendant on the preceding day rather than C’s civil engineering work.

( 나 ) C은 경찰에서 2013년 4월경 H 기자가 피고인을 데리고 C의 집을 찾아왔는 데 ' 제가 마당에 서있는데 자기들끼리 대화를 하는데 대화의 요지가 불법이라 군청에 고발하면 벌금이 나온다는 식으로 말을 툭 던지고는 저에게는 아무런 말도 없이 사라 져 버렸습니다 . ' 라고 진술하였고 ( 증거기록 115쪽 ) , 원심에서는 피고인이 아닌 H 기자가 ' 군청에 신고 없이 토목공사하면 벌금을 낼 수 있다 . ' 고 말하는 것을 들었다고 진술하 였다 ( 공판기록 117 ~ 118쪽 ) . 설령 피고인이 H과의 대화에서 ' 군청에 고발하면 벌금이 나온다 . ' 는 정도의 발언을 하였다고 하더라도 , 그 발언이 피고인이 C에게 산림훼손의 문제점에 관하여 기사를 게재하거나 민원을 제기하는 방법 등으로 불이익을 가하겠다 는 말이나 태도를 나타낸 것이라고 보기 어렵다 .

(C) In the conversation between the Defendant and H, a fine may be imposed if a forest is damaged after having become aware of the report to the Gun Office. In addition to the statement to the effect that “an illegal act” was made, there was no expression or attitude that the Defendant would put C at a disadvantage through articles, etc. when the Defendant demanded C to pay money or did not pay money.

(D) On April 2013 from the police to the trial of the party, C expressed that the Defendant “I” was called as “I am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am am.” The Defendant stated that I am am am am am am am am am a am am am am am am am am am am am am a am am am am am am am am a am am am am am......”

(E) At the lower court, I stated that he did not hear the statement that the Defendant threatened C or demanded money from C (146 pages of the public trial record) and that he was receiving money from C upon C’s request, and that he was receiving money from the chief of the motor vehicle operation on which the Defendant and H were on board.

3. Judgment on the Prosecutor’s misunderstanding of facts and misapprehension of legal principles

A. Summary of the facts charged

On June 16, 2016: at least 00, the Defendant sent a balance to ○○○ Development (hereinafter referred to as “○○ Development”) office located in Chang Chang-gun, Chang Chang-gun, Seoul, on the ground that it did not pay the balance of KRW 10,000,000,000, out of the office purchase price to ○○ Development’s office, on the ground that it was not paid on the payment date. Ma, which is one of the parties to ○○ Development’s internal affairs, and how is in future. Ma, I have been in charge of the permission, guidance and inspection of ○ Development’s ○○ Development’s office at around 11:20,000, and there was a problem of illegal coverage against ○○○○ Development’s illegal waste, which is a public official in charge of L and forest affairs, and the victim who is a public official in charge, to see it. Then, I left the issue of illegal coverage.

B. The judgment of the court below

According to the evidence duly adopted and examined, the lower court determined that it is necessary to gather news on the ground that the Defendant was in a state of dispute over the illegality of ○○ Development, including neglecting certain wastes at the time, and that considering the following circumstances, i.e., (i) the Defendant’s statement made on June 16, 2016 that the Defendant would take legal measures, such as civil action and compulsory execution, without waiting for the victim’s voluntary repayment; (ii) there was no specific harm; and (iii) there was no civil petition related thereto; and (iv) there was a need to gather news as the reporter; (v) examining the situation directly with the public official in charge at the time, and hearing the opinions of the relevant persons do not seem to deviate from the method of gathering news gathering; and (iii) as a result of the inspection by the public official in charge at the time, it is difficult to view that the Defendant was unable to have taken any additional administrative measures or measures to collect evidence beyond the scope of his/her own act or to have not been verified by social norms.

C. Judgment of the court below

(1) Relevant legal principles

In order to establish a crime of intimidation, the content of the harm and injury notified must be sufficient to cause fear to a person generally in light of various circumstances before and after the act, such as the offender and the other party’s tendency, surrounding circumstances at the time of the notification, the degree of friendship and status between the perpetrator and the other party, etc., and the relationship between the third party and the third party, etc., which are included or proposed to be included in the notification. However, as long as the other party recognizes its meaning by notifying the harm and injury to such an extent, it does not require the other party to feel realistically, and as long as the other party recognizes its meaning, it shall be interpreted that the elements of the crime are satisfied and the crime is completed (see, e.g., Supreme Court en banc Decision 2007Do606, Sept. 28, 2007).

In addition, although a creditor can perform acts necessary for exercising a right such as urging for debt collection, he/she should be in accordance with a legally permissible procedure, and his/her right should be exercised in a reasonable manner to the extent necessary to urge the debtor to voluntarily perform his/her right (see Supreme Court Decision 2011Do2412, May 26, 201, etc.).

(2) Determination

Examining the following facts and circumstances that can be recognized by the court below and the court below based on the evidence duly admitted and investigated, it is reasonable to view that a series of words and circumstances of the defendant, such as the facts charged in this part of the facts charged, are the notification of harm sufficient to the extent that they cause fears to the victim, and on this basis, the creditor engaged in an act necessary for the exercise of rights to the extent that is acceptable by social norms for recovery of claims, or a reporter’s legitimate news gathering process. It is difficult to view this part of the facts charged. Therefore, the court below erred by misapprehending the legal principles and misapprehending the legal principles, and the prosecutor’s aforementioned assertion pointing this out is with merit.

(A) ○○ Development paid KRW 20 million to the Defendant under the name of the site office balance, and paid KRW 10 million to the Defendant until May 2016, and paid KRW 10 million to the Defendant on June 14, 2016 (Evidence 7-8 pages). However, as ○○ Development did not pay the remainder of KRW 10 million to the Defendant on June 14, 2016, the Defendant sent a message to the victim K on June 14, 2016, stating that ○○○○ was too easy to see that ○○ was 10 million, and that ○○○○○ was 5% of the remainder of the record of the trial, and ○○○○ was 5% of the remainder of the record of the trial, and ○○○○ was 15% of the remainder of the record of the trial.

(B) The victim K used N, etc. the power of the Defendant in a high space, and maintained a good relationship in order to carry out stone production due to a reporter. The Defendant was aware in advance of the fact that he was a reporter (10 pages of evidence records) and the Defendant was likely to interfere with the operation of ○○ Development by means of preparing articles that are disadvantageous to the development of ○○○ by using his status as a reporter.

(C) The victim K argued that the defendant had built an office at the investigative agency, but did not use the company fund without any ground. The defendant paid money without following it, which is the date on which he promised to pay the remaining 10 million won on June 14, 2016, and made a statement to the effect that the defendant would not pay it in advance, and that he would not pay it in advance, I would like to take a public official. (12 pages of evidence records) When considering the approval and permission from the company, I would like to say that I would not know about the occupation or location of this person (the defendant) at least 6 I would not know about the company, and I would like to say that I would like to make it difficult for the defendant to do so from the point of view of "I would like to make it difficult for him to do so," or that I would like to make it difficult for him to do so in the case of the defendant to make a civil petition or to make it difficult for him to do so.

(D) On June 16, 2016, M, who was a public official in charge of Go Chang-gun, made a concrete statement as follows: "Around 17:0, M, who was a public official in charge of Go Chang-gun, found the forest park and the mountain park in which he was working for the police to be inspected on the site of ○○ Development." On June 16, 2016, M, who was a public official in charge of Go Chang-gun, asked whether he was in charge of Hosan and asked whether he would be in charge of the forest park and the mountain. In addition, at 10:0:0, M, who called "(65 pages of evidence record)", made an office to be called as a public official in charge of the development of ○○○-gun's civil petition after requesting the victim K to take any measure to prepare the remainder on the site. In light of this, on June 16, 2016, the Defendant requested that the public official in charge of the development of ○-gun's civil petition.

(E) On June 17, 2016, the following day, the Defendant, along with a public official in charge of Go Chang-gun, was conducting on-site inspections as an office for ○○ Development, and it is necessary to gather news from the victim K as an reporter, and it is necessary to confirm the problem of neglecting illegal waste against the public official in charge, who is in charge of the company. I would like to gather news. I would like to confirm the issue of neglecting illegal waste against the person in charge of the company.

(F) At the time, M, who was a public official, did not go through a field inspection with a reporter at the lower court, stated that it was more than two times including this part of the facts charged (179, 188 pages of the trial record), and that L, who was a public official in charge, did also go through a field inspection with a reporter at the police station, was the second (56 pages of the evidence record). In light of each of the above statements, it is quite rare for a public official in charge of Go Chang-gun to conduct a field inspection with a reporter, but it seems that it was considerably rare for the public official in charge of Go Chang-gun to conduct a field inspection with the reporter, and that it was affected by the Defendant’s request to the public official in charge of it.

4. Conclusion

Therefore, the judgment of the court below should be reversed on the grounds that the defendant's appeal against the guilty portion among the judgment of the court below is well-grounded, and the prosecutor's appeal against the acquittal portion is also with merit. Thus, without examining the prosecutor's allegation of unfair sentencing, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act and it

【Grounds for another judgment】

Criminal facts

As described in Section 3-A (A) above.

Summary of Evidence

1. The defendant's oral statement in part of the trial court;

1. The witness K's oral statement at the original court and each court of the parties;

1. The witness L and M's each legal statement in the original instance

1. Each police statement of L/M;

1. On-site photographs (the inspection of public officials of the ○○ Development, Shin-hee and Go Chang-gun Office), copies of certification of contents, and sale and purchase of them;

Copy of the contract, fact certificate

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Article 283(1) of the Criminal Act (Selection of Fines)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

The crime of this case is a matter of intimidation by taking advantage of the status of the reporter that the defendant did not pay KRW 10 million out of the office purchase price, and the quality of the crime is not weak.

However, considering the fact that the defendant had no record of criminal punishment for the same crime before before, it is favorable to the defendant, and taking into comprehensive account the age, character and conduct, family environment of the defendant, and the various sentencing conditions shown in the argument of this case, such as the situation after the crime, as stated in the order.

Punishment shall be determined.

Parts of innocence

1. Summary of this part of the facts charged

As described in the above 2-B(1), 2-3(1), and 2-3(1).

2. Determination

As seen in the above 2-b (2) and 2-3 (2) of the above 2-B, since this part of the facts charged constitutes a case where there is no proof of a crime, it shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and pursuant to the main sentence of Article 58(2) of the Criminal Procedure Act, the summary of the above acquittal part of the judgment shall be publicly notified.

Judges Park fixed-scale

Judges Hwang Young-ju

Judges Kim Jong-ju