The meaning and content of “Intimidation” as a means of the crime of coercion / Where an actor demands the other party to provide certain benefits, etc. on the basis of occupation or status, the standard for determining whether such demand constitutes a threat of harm and injury as a means of coercion / Whether the perpetrator, who is a public official, requested the other party to provide any benefits, etc., but is not recognized as such notice of harm and injury (negative)

Articles 123, 129(1), and 324(1) of the Criminal Act

Supreme Court en banc Decision 2018Do13792 Decided August 29, 2019 (Gong2019Ha, 1891) Supreme Court en banc Decision 2018Do2236 Decided January 30, 2020 (Gong2020Sang, 545)

Defendant 1 and one other

Defendants and Prosecutor (Defendant 1)

Law Firm LLC et al. and three others

Seoul High Court Decision 2017No3557 decided May 18, 2018

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court. Defendant 2’s appeal is dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

A. The part of coercion

1) The crime of coercion is an offense that interferes with the exercise of a person’s right or makes another person perform an act without any obligation by assault or threat. Here, intimidation refers to objectively restricting a person’s freedom of decision-making or notifying a harm and injury likely to be frighten enough to interfere with the freedom to enforce a will. To recognize such intimidation, there must be a concrete threat of harm and injury to the extent possible. When an offender demands the other party to provide a certain benefit, etc. based on his occupation or position, whether the required act constitutes a threat of harm and injury may be deemed as a means of coercion. In light of the content and circumstances of the act and behavior, the demand, situation at the time of the demand, and the character, career, mutual relationship, etc. of the offender and the other party, it is difficult to determine whether a perpetrator and the other party can have awareness or reasonably predicted the harm and injury that may cause the other party to be in the position of the offender. If a public official offender demands to provide a certain benefit, etc. to the other party, it can not be acknowledged as a threat of harm and injury as above.

2) For reasons indicated in its reasoning, the lower court maintained the first instance judgment convicting Defendant 1 of this part of the charges, on the ground that Defendant 1 conspired with Nonindicted 1, Nonindicted 2, and the former president of Nonindicted 3 (hereinafter “former president”), the president of Nonindicted 4 Company (hereinafter “Nonindicted 4 Company”), Nonindicted 5, etc., for the recruitment and change of assignment thereof, and for the demand of Nonindicted 6 to select an advertising agency for Nonindicted 7 Company (hereinafter “Nonindicted 7 Company”) constituted intimidation, and thus, affirmed the first instance judgment convicting Defendant 1 of this part of the charges.

3) However, examining the reasoning of the lower judgment in light of the foregoing legal doctrine, it is difficult to recognize the said demand as a threat, i.e., the elements for establishing the crime of coercion.

Inasmuch as the President and the Chief Economic Secretary demanded an enterprise, etc., which may have an influence on their duties or in fact, to provide certain benefits, etc. based on their status, they cannot immediately be evaluated as a threat of harm and injury, and the said demand shall be determined by comprehensively taking into account the aforementioned various circumstances.

In light of the reasoning of the lower judgment and the evidence duly admitted, it is difficult to view that there are circumstances as to the content and circumstances of speech and behavior, the situation at the time of the request, and the character, career, and mutual relationship between the offender and the other party, etc. that could be deemed to have caused the harm and injury if the other party does not comply with the request at the time of the said request. In short, the circumstances cited by the lower court, namely, the circumstances cited by the lower court, namely, the Defendant perceived the relationship between Nonindicted 1 and the former president and the influence of Nonindicted 1, and the personnel affairs of Nonindicted 2, who promoted Nonindicted 5, and Nonindicted 2, called Nonindicted 5, as the matter of interest of the president, and Nonindicted 2, as the matter of instructions, or who was in a position where the president or the senior secretary on economic affairs, can exercise the authority to influence corporate management, such as various permits and tax investigations, are insufficient

Nevertheless, solely based on the circumstances indicated in its reasoning, the lower court convicted this part of the facts charged on the premise that this part of the demand was a threat of harm and injury. In so determining, the lower court erred by misapprehending the legal doctrine on intimidation of coercion, thereby

B. Part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment of Specific Crimes Act”)

The lower court determined that Defendant 1’s overall supervision over the Ministry of Culture, Sports and Tourism (hereinafter “the Ministry of Culture, Sports and Tourism”) in 2014, recommended Nonindicted Company 8 Co., Ltd. (hereinafter “Nonindicted Company 8”) to be the agency for the above event service and, in return, ordered Nonindicted Company 8 to receive the above event video production service at Defendant 1’s request, and maintained the first instance judgment convicting Defendant 1 of this part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the elements for establishing the crime of

The Supreme Court precedents cited in the grounds of final appeal are different from this case, and thus are inappropriate to be invoked in this case.

C. Part of the violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment (hereinafter “Regulation of Criminal Proceeds Concealment”).

The court below held that the charge of violation of the Regulation on the Regulation of Criminal Proceeds Concealment Act was concealed for the purpose of pretending the amount of embezzlement as the property legitimately acquired, and that this cannot be deemed as a naturally accompanying or expected act in the crime of embezzlement, and that the crime of violation of the Regulation on the Regulation of Criminal Proceeds Concealment differs from the crime of embezzlement and its constituent elements or legal interests, and therefore, the crime of violation of this part of the Regulation on the Regulation of Criminal Proceeds Concealment should be deemed to constitute a separate crime, not the crime of embezzlement, but the crime of violation of the Regulation on the Punishment of Criminal Proceeds Concealment, and maintained

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the concealment of criminal proceeds, contrary to what is alleged in the grounds of appeal.

The Supreme Court precedents cited in the grounds of final appeal are different from this case, and thus are inappropriate to be invoked in this case.

2. As to Defendant 2’s ground of appeal

A. The part on acceptance of bribe in advance and the violation of the Specific Crimes Aggravated Punishment Act (Bribery)

The lower court affirmed the first instance judgment convicting Defendant 2 of this part of the facts charged, on the ground that Defendant 2 received a bribe from Nonindicted Co. 10 in response to the solicitation of the duties to be in charge as the head of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, and was in charge

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the duty relationship with the bribery,

The Supreme Court precedents cited in the grounds of final appeal are different from this case, and thus are inappropriate to be invoked in this case.

B. The attempted forced portion

The lower court: (a) determined that Defendant 2 conspiredd with Defendant 1, Co-Defendant 3, Co-Defendant 5, Co-Defendant 1, Defendant 5, Nonindicted 1, and Nonindicted 2, and Nonindicted 2, and Defendant 2 had functional control over the crime of attempted coercion; and (b) maintained the first instance judgment convicting Defendant 2 of this part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on coercion’s intentional act, burden of proof, and joint principal offender

C. The remainder of the assertion

Defendant 2 asserts in the appellate brief that the grounds for appeal in the statement of reasons for appeal are invoked as the grounds for appeal. However, since the grounds for appeal should be specified by citing facts expressed in the records of trial and in the examination of evidence by the court of original judgment, it cannot be a legitimate ground for appeal (see Supreme Court Decision 95Do2716, Feb. 13, 1996, etc.). Accordingly, Defendant 2’s remaining grounds for appeal are unlawful.

3. As to the Prosecutor’s Grounds of Appeal

The lower court determined that Defendant 1’s collusion with Nonindicted 1, 2, and the former president in order with Nonindicted 4, Nonindicted 5, etc. for the recruitment and change of assignment of Nonindicted 6 and for the appointment of Nonindicted 7’s advertising agency to Nonindicted 5, etc., cannot be deemed as an abuse of official authority, since it does not constitute an act that falls under the general official authority of the president and the senior secretary of economic affairs. Accordingly, the lower court affirmed the first instance judgment that acquitted Defendant 1 of this part of the charges of abusing official authority and obstructing another’s exercise of rights, which are in a mutually competitive relationship with the former president, on the ground that Defendant 1’s act of coercion was not considered as an act that does not fall

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

4. Scope of reversal

Of the judgment below, the part of coercion against Defendant 1 should be reversed for the same reason as stated in the above 1-A. The part of the judgment below as to Defendant 1 should be reversed for the same reason as stated in the above 1-A. The part concerning the above reversal and the relation of concurrent crimes under the former part of Article 37 of the Criminal Act and the part concerning one sentence should be reversed together. Thus, the part concerning Defendant

5. Conclusion

Therefore, the part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant 2’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)