[1] The meaning of "business" subject to protection of crime of interference with business

[2] Whether the act of arranging sexual traffic under the former Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. constitutes "business" subject to protection of the crime of interference with business (negative)

[3] In a case where the Defendant, an executive officer of a violent organization, was indicted for interference with business by force, such as putting a word "sickle" in front of a sexual traffic business establishment operated by A or parking a vehicle, the case holding that the judgment below which found the Defendant guilty on the ground that the operation of a sexual traffic business establishment cannot be deemed as a business subject to protection of the crime of interference with business

[1] "Business" subject to the protection of the crime of interference with business under the Criminal Act should be an occupation or business continuously engaged in, and must be worth protecting under the Criminal Act from unlawful infringement of other persons. Thus, in a case where certain business or activity itself has anti-sociality to the extent that it is considerably unacceptable due to the degree of illegality, it cannot be deemed that it constitutes "business" subject to protection of interference with business.

[2] Article 2(1)2 of the former Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. (amended by Act No. 10261, Apr. 15, 2010) provides that "act of arranging, soliciting, inducing, or coercing sexual traffic" and "act of providing a place for sexual traffic" shall be prohibited from employing or soliciting other persons for the purpose of having other persons engage in an act of arranging sexual traffic and selling sex under Article 4 subparagraphs 2 and 4 of the same Act. Since Article 19(1)1, (2)1, and Article 23 of the same Act provides that an act of arranging sexual traffic, etc. shall be subject to criminal punishment (see, e.g., Articles 19(1)1, 19(2)1, and 23 of the same Act) and an act of arranging sexual traffic, etc. shall not be deemed to be an act of prohibiting sexual traffic from being originally prohibited by the law, but shall not be deemed to be an act of protecting the crime of interference with business.

[3] In a case where the Defendant, an executive officer of a violent organization, was indicted for interference with his/her business by force in collusion with his/her assistants, such as putting a word "fals" in front of a sexual traffic business establishment operated by Gap or parking cars, the case holding that the judgment below convicting the Defendant on the ground that the Defendant constitutes "a person who acts such as arranging or soliciting sexual traffic or providing sexual traffic places" under Article 19 (1) 1 of the former Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. (amended by Act No. 10261 of Apr. 15, 2010) or "a person who acts such as arranging sexual traffic, etc. for business" under Article 19 (2) 1 of the same Act, and thus, it cannot be deemed that the work of Gap's sexual traffic business establishment is subject to protection of the crime of interference with business.

[1] Article 314 of the Criminal Act / [2] Article 314 of the Criminal Act; Articles 2(1)2, 4 subparag. 2, 4 subparag. 4, 19(1)1, and 19(2)1, and 23 of the former Act on the Punishment of Acts of Arranging Sexual Traffic (Amended by Act No. 10261, Apr. 15, 2010) / [3] Articles 30 and 314(1) of the Criminal Act; Articles 2(1)2, 19(1)1, and 23 of the former Act on the Punishment of Acts of Arranging Sexual Traffic (Amended by Act No. 10261, Apr. 15, 2010)

[1] Supreme Court Decision 2001Do2015 Decided November 30, 2001 (Gong2002Sang, 238) Supreme Court Decision 2001Do5592 Decided August 23, 2002 (Gong2002Ha, 2254) Supreme Court Decision 2006Do6599 Decided January 12, 2007

Defendant 1 and four others

Defendants

Attorney Seo-soo et al. and three others

Seoul High Court Decision 2011No163 decided May 20, 2011

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by Defendants 2, 3, 4, and 5 are dismissed.

The grounds of appeal are examined.

1. Judgment on Defendant 1’s grounds of appeal

A. As to the violation of court-oriented principle and the mistake of facts

Of the grounds of appeal by the above defendant, the ground of appeal for misconception of facts as to obstruction of business, violation of the Punishment of Violences Act due to joint conflict, collective confinement, etc. by the executive members of a criminal organization and collective confinement is erroneous in the selection of evidences or the recognition of facts belonging to the exclusive jurisdiction of the court below, which is a fact-finding court, and thus does not constitute a legitimate ground of appeal, and the judgment below does not err in violation of the law of logic and experience and free evaluation of evidence as otherwise alleged in the ground of appeal. In addition, even if the court below examined the reasoning of the judgment below in light of the records, it cannot be deemed that the above defendant committed an unlawful act affecting the conclusion of the judgment due to the violation of the

B. As to the misapprehension of legal principles as to obstruction of business

The term "business" subject to protection under the Criminal Act for the crime of interference with business should be an occupation or a business continuously or continuously engaged in, which is worth protecting under the Criminal Act from an unlawful infringement of other persons. Thus, in a case where a certain business or activity itself is so anti-social as to the extent that it is considerably unacceptable due to the degree of illegality, it cannot be deemed that it constitutes "business" subject to protection under the crime of interference with business (see, e.g., Supreme Court Decisions 2001Do2015, Nov. 30, 2001; 2006Do6599, Jan. 12, 2007).

Meanwhile, Article 2(1)2 of the former Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. (amended by Act No. 10261, Apr. 15, 2010; hereinafter “the Act”) provides that “the act of arranging, soliciting, inducing, or coercing sexual traffic” and “the act of providing a place for sexual traffic” shall be prohibited from engaging in the act of arranging sexual traffic and the act of arranging sexual traffic in violation of Article 4 subparag. 2 and 4 of the Act, and Article 4 provides that the person who has engaged in the act of arranging sexual traffic, etc. and the person who has attempted to commit such act shall be punished (see Articles 19(1)1, 19(2)1, and 23 of the Act, etc.). Since the act of arranging sexual traffic, etc. is a basic prohibited act under the Act, which is not only a serious criminal act subject to criminal punishment, but also a case that is contrary to social norms to the extent that it cannot be justified under the concept of justice, it cannot be viewed as an act of interference with business.

Examining these legal principles in light of the records, the victim non-indicted 1, from April 2005 to March 3, 2005, knew the fact that the victim employed a woman in the vicinity of the Suwon Station and operated a sexual traffic business establishment. Since the operation of the said sexual traffic business establishment inevitably entails the act of arranging or soliciting sexual traffic, the act of providing the place of sexual traffic, etc., the operator of the said business establishment constitutes a person who performs an act of arranging sexual traffic, etc. under Article 19 (1) 1 of the Act, or a person who performs an act of arranging sexual traffic, etc. under Article 19 (2) 1 of the Act, and thus, the operation of the said victim's sexual traffic business is not subject to protection of the crime of interference with business.

Nevertheless, the court below erred by misapprehending the legal principles as to duties subject to protection of the crime of interference with business, thereby adversely affecting the conclusion of the judgment, and the grounds of appeal assigning this error are with merit.

C. As to the misapprehension of legal principles as to the executive activities of criminal organizations

In full view of the contents, form, legislative purport, type, and degree of punishment of Article 4 of the Punishment of Violences, etc. Act (hereinafter “Act”), “activities” in Article 4(1) of the Act refers to active activities aimed at the continuation and maintenance of a crime group or group conducted by a collective decision-making or group in accordance with the internal discipline and common guidance system, and the degree of contribution is equivalent to those stipulated in Article 4(3) and (4) of the Act on the breadth. In addition, whether a specific act constitutes “activities” as a member of a crime group or group shall be determined by comprehensively taking into account the specific circumstances such as the date, place and contents of the act in question, motive and purpose of the act in question, relationship between the decision-making person and the executor, and the procedure of delivery thereof, and it shall not be deemed that the act in question is not organized for the purpose of maintaining and maintaining a crime group or group, collective decision-making, or that the act in question constitutes a group of 20 or higher-ranking members, such as holding an assembly or a group of members, etc. 90.

The court below found the defendant guilty of this part of the facts charged based on its adopted evidence. In light of the above legal principles, the judgment of the court below is just and acceptable, and there is no error of law such as misunderstanding of legal principles as argued in the Grounds for

D. In this case where the above defendant was sentenced to a minor punishment more than 10 years of imprisonment, the reason that the amount of punishment is unreasonable is not a legitimate ground for appeal.

2. Judgment on Defendant 2’s grounds of appeal

A. As to the misapprehension of legal principles as to the unspecified persons of the facts charged

The purport of Article 254(4) of the Criminal Procedure Act to specify the date, time, place, and method of a crime is to limit the object of a trial against the court, to specify the scope of defense against the defendant, and to facilitate the exercise of the defense right by specifying the scope of defense against the defendant. Thus, in light of the nature of the indicted crime, it should be specified by disclosing the date, time, place, method, purpose, etc. to the extent that the facts constituting the cause of the public prosecution can be distinguished from other facts. Even if the time, place, contents, etc. of the public prosecution are not specified in detail or some of them are unclear, it cannot be said that the facts charged are not specified if the facts charged can be specified by other matters indicated together and it does not interfere with the defendant's exercise of defense right (see, e.g., Supreme Court Decision 2004Do561, Jun

The facts charged against the above defendant are not specified in the facts charged against the defendant, and is written as "Seman of August, 200, Police Officers of August, 12, and the end of December," and it extends over the extent of 10 to 30 days. However, since the period extends over the extent of 10 to 10 days, it is clearly specified in the year, year, time, place, method, accomplice, time required for the crime, etc., and it cannot be deemed that there is an obstacle to the exercise of the right to defense of the above defendant. Thus, the judgment of the court below is not erroneous in the misapprehension

B. As to the violation of the evidence law

Of the grounds of appeal, the remaining misapprehension of the legal principles and the misapprehension of the legal principles as to the crime of crime organization activity, which is based on the premise of facts acknowledged by the court below, is erroneous or erroneous. However, the court below did not err in violation of logical and empirical rules and beyond the bounds of the principle of free evaluation of evidence. Thus, all of the above grounds of appeal cannot be justified or acceptable.

C. In this case where the above defendant was sentenced to a minor punishment more than 10 years of imprisonment, the reason that the amount of punishment is unreasonable is not a legitimate ground for appeal.

3. Determination on Defendant 3 and 5’s grounds of appeal

All of the grounds of appeal are merely the allegation that the determination of punishment by the court below is unfair in this case where the selection of evidence and the recognition of facts belonging to the exclusive jurisdiction of the court below, or where punishment of death, life imprisonment, or imprisonment with or without prison labor for not less than ten years, is pronounced, and all of the grounds of appeal

4. Judgment on Defendant 4’s grounds of appeal

A. As to the misapprehension of legal principles as to evidence rules

In principle, a protocol containing a full-time statement or a full-time statement shall be admissible in accordance with the provisions of Article 310-2 of the Criminal Procedure Act, and exceptionally, in accordance with the provisions of Article 316(2) of the Criminal Procedure Act, it shall be admissible only when the person making the original statement is unable to make a statement due to death, illness, residence in a foreign country, or any other reason, and the statement is made under particularly reliable circumstances. In this case, the term "when the statement was made under particularly reliable circumstances" means that the statement was made is not likely to be false and there is only a specific and external circumstance to guarantee the credibility or voluntariness of the contents of the statement (see Supreme Court Decision 200Do159, Mar. 10, 200).

In light of the above legal principles and records, the court below's use of the protocol of statement by the police officer against the non-indicted 2 as evidence is acceptable. Thus, it is hard to see that there is an error of law in the misapprehension of legal principles as to

B. As to the misapprehension of legal principles as to mental disorder

Examining the reasoning of the judgment below in light of the records, it is just for the court below to reject the argument regarding the mental disorder of the above defendant on the grounds of its stated reasoning, and there is no error of law by misunderstanding

C. The remaining grounds of appeal are merely the allegation that the determination of the lower court’s punishment is unfair in this case where the selection of evidence and the recognition of facts, which are the exclusive jurisdiction of the lower court, are criticized, or where a minor punishment is sentenced to death penalty, life imprisonment, or imprisonment with or without prison labor for more than ten years, and thus, all of

5. Scope of reversal

The judgment of the court below against Defendant 1 among the Defendants who filed an appeal is erroneous in finding Defendant 1 guilty of the part which does not constitute the crime of interference with business as seen earlier, which is one of the concurrent crimes under the former part of Article 37 of the Criminal Act with the remainder of the facts charged guilty by the court below. Thus, the court below's judgment against

6. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining defendants' appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)