[1] The meaning of "when two or more persons jointly commit a crime" under Article 2 (2) of the Punishment of Violences, etc. Act

[2] The meaning of intimidation in the crime of intimidation

[3] The case holding that a crime of intimidation is not established since a threat of harm was made to the extent that it can be acceptable in light of social norms

[1] The phrase "when two or more persons jointly commit the crime under Article 2 (2) of the Punishment of Violences, etc. Act" requires that there exists a so-called accomplice relationship among them. They require that several persons are aware of another person's crime in the same opportunity and used it to commit the crime.

[2] In the crime of intimidation, a threat means notifying a person of harm to the extent that it may cause fears. To establish a crime of intimidation, there must be a concrete threat of harm to the extent that the crime may be deemed at least possible. In addition, even if there is a threat of harm, if it is within the extent that it can be accepted by social norms in light of social customs and ethical sense, etc., the crime of intimidation is not established.

[3] The case reversing the judgment of the court below which convicted a crime of intimidation on the ground that the crime of intimidation is not established because it is the degree to be acceptable in light of social norms, although it is a threat of harm

[1] Article 2 (2) of the Punishment of Violences, etc. Act / [2] Article 283 of the Criminal Act / [3] Articles 20 and 283 of the Criminal Act

[1] Supreme Court Decision 85Do119 delivered on June 10, 1986 (Gong1986, 894) Supreme Court Decision 95Do1642 delivered on February 23, 1996 (Gong1996Sang, 1172), Supreme Court Decision 96Do1959 delivered on February 14, 1997 (Gong197Sang, 831) / [2] Supreme Court Decision 90Do2102 delivered on May 10, 1991 (Gong191, 1675), Supreme Court Decision 94Do2187 delivered on September 29, 195 (Gong195Ha, 3648)

Defendant

Defendant

Attorney Kim Jong-soo

Daegu High Court Decision 97No455 delivered on December 23, 1997

The judgment below is reversed and the case is remanded to the Daegu High Court.

We examine the grounds of appeal.

1. The summary of the facts charged of violating Article 2(2) of the Punishment of Violences, etc. Act, which the court below found guilty by taking account of the evidence in its judgment, is as follows.

The Defendant conspired with the co-defendant of the first instance court, who is a woman living together with the Defendant, in order to threaten his family, etc. on several occasions from February 22, 1997 to March 12 of the same year, that Non-Indicted 1 (the age of twenty) had sexual intercourse from around February 22, 197 to around March 12 of the same year; and

A. At around 15:00 on April 3, 1997, the defendant called the victim 1 (the age of 26) who is the son of Nonindicted Party 1's words, "the co-defendant 1 of the first instance trial does not need to find and resolve how the defendant will leave the country." If it is not necessary to find and promptly find Nonindicted Party 1, the defendant would file a complaint against the victim as a crime of adultery, and the defendant intimidationd the victim four times in total from April 2 of 1997 to April 14:00 of the same year as shown in the list of crimes in the annexed sheet of crimes.

B. On the 7th of the same month, Co-defendant of the first instance trial in the same 3th of the new 3th of the new 3th of the same month, the green fluor, in the underground fluorial building, and the said fluor, that the co-defendant of the first instance trial filed a complaint against the victim 1 as a crime of home fluorium," and the defendant threatened the victim 1 by taking over the fluoral duties from the next fluoral stairs of the above fluoral and fluor, and assault the female to avoid this fluoral damage.

C. On the 7th day of the same month, at the house of Nonindicted Party 1 located in Gwangjin-dong 746, the first instance trial co-defendant showed the fact that he prepared by Nonindicted Party 1’s father to the victim 2, who is the father of Nonindicted Party 1, and threatened him by saying, “I am see. his father is a crime of family destruction, and I see whether I am or not I am about to send the house.”

2. Judgment of party members

A. "When two or more persons jointly commit the crime under paragraph (1)" under Article 2 (2) of the Punishment of Violences, etc. Act requires that there exists a so-called co-offender relationship among them. They require that several persons are aware of another person's crime in the same opportunity at the same place and commit the crime using it (see, e.g., Supreme Court Decisions 96Do1959, Feb. 14, 1997; 95Do1642, Feb. 23, 1996; 85Do119, Jun. 10, 1986).

However, even according to the facts charged, it is evident that the defendant or co-defendant 1-A committed the crime of intimidation alone, and the act of intimidation listed in Article 2 (2) of the Punishment of Violence, etc. Act 1-C of the first instance court cannot be found to have committed any act of intimidation by the co-defendant 1-C of the above 1-mentioned 1-3 (hereinafter referred to as the "victim 2") (According to the statements made by the police of the victim 2, at the time, the co-defendant 2 entered the house of the victim 2 and talked with the victim 2, and the defendant was located outside the 2-gate of the victim 2. The investigation records are 7 pages, 79 pages, and 79 pages). Accordingly, the court below's measures that the defendant recognized that the defendant committed the crime of intimidation in collaboration with the co-defendant 2 of the first instance court were jointly committed by the co-defendant 1-2 or more of the above part

B. In the crime of intimidation, the term “Intimidation” means notifying a person of harm to the extent that it may cause fears, and the crime of intimidation requires a concrete threat of harm to the extent that it may be deemed at least possible to be constituted (see, e.g., Supreme Court Decision 94Do2187, Sept. 29, 195). In addition, even if the notice of harm is given, the crime of intimidation is not established if it is acceptable to the general public in light of social customs and ethical concept, etc.

First of all, among the facts charged by the court below, the statement No. 1. A. No. 1 of the crime list No. 1 of the separate crime list, which the court below acknowledged, even if the defendant made such a statement, it is difficult to find it as a threat of harm and injury that the defendant would harm certain legal interests of the victim 1.

Next, in light of the following circumstances revealed in the record, Co-defendant 1-A of the above 1-2 (a) and 4-2 (b) and (c) of which Co-defendant 1 conspired with the defendant to threaten the victim 1 or 2, the crime of intimidation is not established, considering the following circumstances.

The Defendant and the Co-defendant in the first instance trial are de facto married in a de facto marital relationship for not less than ten years since February 1986 (see, e.g., the statement and investigation record at the police of the first instance trial). From October 1995, the Defendant and the Co-defendant in the first instance trial began to live in the right side of the house, and Non-Indicted 1 and the victim first instance trial began to live in, from October 1995, and their names were the Co-defendant in the first instance trial, and they were close to the facts charged (see, e.g., the victim’s statement and investigation record at the police, 83 pages). However, Non-Indicted 1 entered into a sex relationship with the Defendant and made a promise to commit rape in the first instance trial on several occasions, and it is difficult to view that Non-Indicted 1 committed rape in light of the circumstances of each of the Defendant and Non-Indicted 1’s testimony in the first instance trial, and thus, it was difficult to see that the Defendant and Non-Indicted 1 made an attempt to rape.

2. 22. The Defendant and Nonindicted Party 1 began to have a sexual intercourse in the inn of the inn of the river, at least five times until March 8, 200.

3.8. On August 1, 200, Non-Indicted 1 sent to the defendant and let the defendant go in a room, called to the co-defendant of the first instance trial to the co-defendant with the defendant, and the co-defendant of the first instance trial knew that he was in a brigade with the defendant. According to the statement in the first instance court, Non-Indicted 1 appeared in a brigade with the defendant (see, e.g., Supreme Court Decision 65 pages). Accordingly, according to the statement in the first instance court of the first instance, Non-Indicted 1 stated that the non-Indicted 1 would be in a brigade with the defendant." Accordingly, the non-Indicted 1 assaulted the defendant at the face of the first instance court to the extent that the defendant was faced with the defendant, and that the defendant was living in a room (see, e.g., the statement in the police and investigation records in the first instance court of the non-indicted 1). The non-indicted 1 appears to have known the defendant that he would not be able to believe the defendant and that he would be in the first instance court of the first instance trial.

3. On November 1, 198, Co-Defendant 1 demanded that Nonindicted 1 find the Defendant, and Nonindicted 1 contacted the Defendant with radio callers, identified his wife, and met the Defendant with his seat. The Defendant and Nonindicted 1 re-consigned with the Defendant in his seat of permanent residence, and Non-Indicted 1 met with the Defendant and Non-Indicted 1 returned to Daegu and the Defendant and Non-Indicted 1 met with the first instance trial co-defendant, and Non-Indicted 1 re-consigned the Defendant again to the Co-Defendant 1 of the first instance trial by concluding that “the Defendant and Non-Indicted 1 had been in person with the Defendant.”

3. On January 14, 100, Nonindicted 1 prepared a letter (a statement with no title 103 of investigation records, a statement with no title 109 of investigation records, and a statement with no title 112 of investigation records, see the statement in the police of the first instance trial, and the co-defendant 1 of the first instance trial decided to read Nonindicted 1 (see, e.g., the statement in the police of the co-defendant 169). In this case, the co-defendant 1 of the first instance trial, in the future, had concerns that the Defendant and Nonindicted 1 will come out of the court, and the Non-Indicted 1 also decided to do so.

3. On 17. 17. Defendant and Co-Defendant 1 and Nonindicted 13 moved to South Korea with a motor vehicle, and the Co-Defendant 1 came to Daegu. Co-Defendant 1 called “I would receive mental compensation” and entered the office of the first instance court. In this case, the reason why three persons became in South Korea was demanded to divorce against the Defendant, and the co-defendant 1 could not be divorced because the Defendant did not unilaterally mislead the Defendant, but did not make any mistake, and Nonindicted 1 could not be divorced (see, e.g., statement at the prosecutor’s office of the first instance court, investigation record, 341 pages). After the Co-defendant entered the office of the first instance court, the Defendant and Nonindicted 1 came to have a sexual relationship with the Defendant and Nonindicted 1. In this case, the first instance court taken the photograph of Nonindicted 1 by forcing the Defendant to take a photograph, and the Defendant and Nonindicted 1 agreed to have a photograph.

3. On January 18, 198, Nonindicted 1 promised that “In order to compensate for mental illness, Co-defendant 1 will read a letter to Co-defendant 1 in the future (see, e.g., the statement at the police in the first instance trial and the investigation record 177 pages).”

However, after that, Nonindicted Party 1 remains in the house of friendship Nonindicted Party 2, and did not contact with the co-defendant 1 in the first instance trial (see, e.g., Nonindicted Party 1’s statement at the prosecutor’s office and investigation records).

4.1. On March 29, 200, Nonindicted 1 was raped against the Defendant on the ground that Nonindicted 1 was induced by Nonindicted 1 and Nonindicted 3, who was under contact with the victim 1, and the victim 1’s male-child arrest, showed the so-called “consceptor or he was responsible for him,” and that the Defendant was not responsible for him (see, e.g., Nonindicted 1’s statement at the police, investigation records, 25 pages). On March 29, 200, Nonindicted 1 was raped against the Defendant on the ground that he was induced by Nonindicted 1 from his mother, and Nonindicted 1 was aware that Nonindicted 1 was made a false document by the Defendant’s assault and coercion (see, e.g., statement at the police station of the victim 1, referring to the statement at the police station, investigation records, 82 pages).

According to the above facts, co-defendant in the first instance trial, in fact, has been seriously fluordated with the defendant who is the husband and non-indicted 1's non-indicted 1 in a way that it is difficult for non-indicted 1 to gain him formally, has fluently committed an unlawful act against the defendant, again committed an unlawful act against the co-defendant in the first instance trial, and has changed the previous attitude and claimed that he was raped against the victim 1. It is said that the defendant had suffered a serious family dissipated situation. Meanwhile, the defendant was trying to avoid the divorce, and he was trying to prove it through the non-indicted 1's speech, and was trying to prove it through the non-indicted 1's speech, because Non-indicted 1 made a vindication against the co-defendant 1 who was guilty of the defendant.

In addition, the lower court found the Defendant guilty on April 2 through April 7, 200. However, even with Nonindicted 1, 1, and 2’s statement, the Defendant or Co-Defendant 1 did not demand money from the Defendant or Co-Defendant 1 to him. They stated that the Defendant and Co-Defendant 1 demanded money from the victim 1 and the victim 2 in a deceptive manner (see, e.g., Nonindicted 1’s statement in the police, 25, 33, 87, and 79, respectively). However, according to the records, the Defendant and Co-Defendant 1’s demand on Nonindicted 1 and Co-Defendant 2 was not a monetary payment, but a police request on Nonindicted 1 and Non-Indicted 2’s statement on April 7, 200 to Defendant 1 and Non-Indicted 2, see, e.g., see, e., the Defendant’s statement on the victim 1 and Non-Indicted 1’s statement on the victim 1’s voice.

In light of the above premise: (a) Nos. 1.-A. 4. and 1. (b) and (c) of the annexed list of crimes No. 1.1-A; and (b) of the above 1-B, Co-defendants in the first instance trial as stated in paragraph (c) also demanded that “the Co-defendants in the first instance trial demand that “the Co-defendant 1 engaged in any unlawful act with the defendant 1 by finding the victim 1 and the victim 1,” and that “the Co-defendants in the judgment of the court of first instance will be subject to suspicion of the unlawful act with the defendant 1, or would interfere with the collection of the office.” In light of the attitude inconsistent with the aforementioned unlawful act as seen earlier by Non-Indicted 1, the above threat of harm and injury accompanying the above demand by Co-defendants in the first

Ultimately, the lower court’s recognition of all of the words above as a crime of intimidation is erroneous in misapprehending the legal doctrine regarding the crime of intimidation or failing to exhaust all necessary deliberations. There is a reason for the Defendant’s argument that points this out out.

3. Therefore, the lower judgment is reversed and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)