In a case where, after receiving a decision on dismissal from a religious order from office under the due procedure under the church Act, a pastor who is disqualified as a pastor of the religious order and the previous church in group withdrawal from the religious order, and the members who have lost all the rights to the properties of the previous church enter the previous church without permission and make a worship, and the members of the previous church in response thereto carried out the services, and in response thereto, he did an act of cutting the microsnating the previous church and drawing the above pastor into the church, the case holding that the above worship is difficult to be viewed as impeding the worship of the members of the previous church, and therefore, it is subject to protection of obstruction of worship under the Criminal Act, even if it is subject to protection, it constitutes a justifiable act.

In a case where, after receiving a decision on dismissal from a religious order from office in accordance with legitimate procedures under the church Act, a pastor who is disqualified as a pastor of the religious order, and a member who has lost all the rights to the properties of the previous church collectively secedes from the previous church, and carried out services by entering the previous church without permission, the members of the previous church in response thereto, and carried out the works, etc., the above worship shall not be deemed to obstruct the worship of the members of the previous church and shall not be subject to protection of obstruction of worship under the Criminal Act, and even if it is subject to protection, interference with the worship of the members of the previous church shall be deemed to constitute a justifiable act.

Articles 20 and 158 of the Criminal Act

Defendant 1 and two others

Defendants

Kim Jong-chul

Attorney Kim Jong-tae

Seoul Northern District Court Decision 2004Gohap548 decided August 18, 2005

The judgment of the court below is reversed.

Defendants are not guilty.

1. Summary of grounds for appeal;

① On April 20, 2003, at around 10:10 on April 20, 200, Nonindicted Party 1 and (name 1 omitted) who entered the (name 2 omitted), church building (hereinafter “instant church building”) located in Dongdaemun-gu Seoul (hereinafter “instant church building”) shall not be deemed to be an example subject to protection of the crime of interference with worship under the Criminal Act. ② At the time of this case, the members of Nonindicted Party 1 and (name 1 omitted) church 1 omitted the above interference and interfere with the (name 2 omitted) church 11:0 of the same day’s (name 2 omitted), the Defendants excluded the above interference, resulting in the acts identical to the facts charged of this case in order to make the (name 2 omitted), and such acts constitute a legitimate act, and the judgment below erred by misapprehending the legal principles, despite being erroneous in the misapprehension of legal principles.

2. Summary of the facts charged in the instant case and judgment of the lower court

The summary of the facts charged of this case is as follows: "The defendants enter the church building of this case in collusion with the other (name 2 omitted) church members on April 20, 203, which is entitled to use and profit from the distribution of the worship of the above church building as collective ownership at around 10:10 on April 20, 203 and (name 1 omitted of the church) church members, and Defendant 1 got into the tugboat distribution, and he saw Defendant 1 to get the microphone of Non-Indicted 1, who is up to the platform, let his sound cut off, inciting Defendant 2 and Defendant 3’s sound from the lecture platform, and prevented Non-Indicted 1’s wedding gathering while inciting the members, and Defendant 3 interfered with the other (name 2 omitted of the church members of the church of this case) church of this case, and found Defendant 1 guilty of the facts charged of this case’s worship, and by drawing it out from the new platform of this case from the new platform of this case by means of the evidence of this case (name 1).

3. The judgment of this Court

A. Facts of recognition

Upon considering the evidence duly examined and adopted by the court below in light of the records of this case, the following facts can be recognized:

(1) From June 9, 196 to 197, the name of the above church (the name of the church of this case was omitted) was 10 times the name of the above church (the name of the church of this case 2 omitted) and the name of the church of this case 9, which was 10 times the name of the church of this case (the name of the church of this case 3) and the name of the above church of this case 10 times the name of the above church of this case was omitted. The above (the name of the church of this case 10, the name of the church of this case 10, the name of the church of this case 10, the name of the church of this case 9, the name of the church of this case 10, the name of the church of this case 10, the name of the above church of this case 10, the name of the church of this case 9, the name of the church of this case 197, and the name of the church of this case 197.

(2) On May 9, 199, Non-Indicted 1 adopted a resolution that "(name 1 omitted) the church shall hold a general meeting of the members of the above (name 1 omitted) with the consent of 303 persons (including 20 persons entrusted) present at the above general meeting of the members, who shall leave the religious order of the Association of the Association of the Republic of Korea and its affiliated (name 1 omitted) and shall be an independent church, and Non-Indicted 1 shall be present at the religious order of the Association of the Republic of Korea and its affiliated (name 1 omitted) and shall be present at the independent church of the Association of the Republic of Korea and shall be present at the independent church of the above independent church."

(3) After that, the majority members of the church (name 1 omitted) with Nonindicted 3 and (name 1 omitted) who had worked as the principal at the (name 1 omitted) church have formed a “(name 1 omitted) church settlement committee” which is composed of Nonindicted 3 as the chairman while raising an issue as to the religious route by stating that Nonindicted 1 had his mother’s network as the reconstruction of the said church, and have decided to remove Nonindicted 1 from the office of the (name 1 omitted) church as well as to remove from the office of the said church (name 1 omitted) church by gathering about 200 members on November 25, 200, there has been no agreement among the members of the previous church (name 2 omitted) church of this case after notifying Nonindicted 1 of the same contents, and continuously carried out the right of the said church (name 1 omitted from the church of this case) church of the name of the church of this case and the name of the church of this case, which has been omitted from the (name 200) church of this case.

(4) On April 20, 2003, the members of the church (2 omitted) planned to restore to 11:00 a week, and prepared to post a notice informing the events inside and outside of the church in advance. However, at around 10:10 on the same day without any prior notice or notice to the members of the (2 omitted) church, the number of the members of the church (1:2 omitted) association, including the Defendants from the distribution of the instant church building for the purpose of preparing for and attending the distribution of the said church: (1) association members of the (2 omitted) association, including the Defendants, were to leave the church building of this case without any permission of the members of the association; (2) association members of the one-time association, including Nonindicted Party 1, and (1) association members of the one-time association, were to leave the church without permission of the members of the church of this case; and (1) association members of the first time association, who did not leave the said church (1:1 omitted) association members of the said association, were to be demoted and (2) association members of the said church.

(b) Markets:

(1) Whether the instant worship is subject to protection of obstruction of worship under the Criminal Act

In full view of the above facts, the Korean Association is a branch church belonging to the Korean Association (No. 2 omitted). Non-Indicted 1 is a branch church belonging to the Korean Association (No. 2 omitted), and even though there was a conflict with the head of the church who is a member of the church while in office as a member of the church and was sentenced to the suspension of the affairs from the religious order, it was judged that the religious order was avoided by the member of the church and that the above decision was passed on May 9, 199, and it was decided to leave the religious order and establish an independent church (No. 1 omitted) by gathering the supported members of the religious order to leave the religious order and name of the (No. 2 omitted) association, and even if the above decision was passed on May 9, 199 on May 20, 199, the two members of the above religious order followed the requirements for convening the general assembly and convening the religious order, etc., or that some of the members of the right to move to the religious order did not agree with the previous church, it still constitutes an independent church.

Therefore, the instant worships by approximately 40 members of the church (name 2 omitted) were transferred by Nonindicted 1, who lost his qualification as a pastor of the religious order under the church Act within the building of this case, which is owned by the members of the church (name 2 omitted), as well as by Nonindicted 1, who lost his qualification as a pastor of the religious order after obtaining a decision of dismissal from the religious order from office in accordance with due procedures under the church Act, and as a group withdrawal of the previous church, was conducted by the members of the church (name 1 omitted) who lost their status as a member and all rights to the properties of the previous church, and was committed by the members of the church (name 1 omitted) who lost their rights to the properties of the previous church, and it is difficult to view that the instant worships are subject to protection of interference with the worship under the Criminal Act, and there is no other evidence to regard the instant worships as subject to protection of obstruction of the worship.

(2) Whether the Defendants’ act constitutes legitimate act

Even if the worship of this case is subject to protection under the Criminal Act, since it constitutes 10 times as well as 60 times as to non-indicted 1 and (1 omitted) church members since December 1, 200, it is much more than 11:0 times as much as the members of the church of this case continuously occupy the church of this case, and the members of the association of non-indicted 1 and (1 omitted) association did not raise any objection to the church of this case until the transfer of this case or claim the right to the church of this case, and it is reasonable that the members of the association of the non-indicted 2 did not unilaterally occupy the church of this case and use the church of this case for the purpose of preventing the above 10 times as to non-indicted 1 and the above 20 times as to non-indicted 1 and the above 10 times as to the non-indicted 2's acts of obstructing the distribution of the church of this case, (2) the members of the association did not leave the church of this case without the intention of the members of the association.

3. Conclusion

Therefore, since the facts charged in this case constitute a case where there is no proof of facts of crime or even if it is not a crime, the court below found the defendant not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act or the former part of Article 325 of the Criminal Procedure Act, but the court below found the defendant guilty of the facts charged in this case. The court below erred by misapprehending the legal principles as to mistake of facts or obstruction of worship, thereby affecting the conclusion of the judgment. The defendant's appeal pointing this out has merit, and the judgment below is reversed

The summary of the facts charged in this case is as stated in Paragraph (2) above, and as seen above, the facts charged in this case constitutes a case where there is no proof of facts charged or it does not constitute a crime even if it is not so. Thus, the defendant is acquitted in accordance with the latter part of Article 325 of the Criminal Procedure Act

Judges Kim Young-chul (Presiding Judge)