[1] Whether there is a need for the other party to realistically feel fear in order to reach the conviction of intimidation (negative)

[2] The method of notifying harm and injury in a crime of intimidation

[3] In a case where the defendant was prosecuted with two knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife

[1] Articles 283(1) and 286 of the Criminal Act / [2] Article 283(1) of the Criminal Act / [3] Article 283(1) of the Criminal Act, Articles 2(1)1 and 3(1) of the Punishment of Violences, etc. Act

[1] [2] Supreme Court Decision 2009Do5146 Decided September 10, 2009 / [1] Supreme Court en banc Decision 2007Do606 Decided September 28, 2007 (Gong2007Ha, 1726) Supreme Court Decision 2006Do6347 Decided May 29, 2008 / [2] Supreme Court Decision 74Do2727 Decided October 7, 1975 (Gong1975, 8704)

Defendant

Prosecutor

Daegu District Court Decision 2010No2149 Decided October 6, 2010

The part of the judgment below regarding the crime of intimidation is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. The remaining grounds of appeal are dismissed.

The grounds of appeal are examined.

1. As to larceny

Examining the reasoning of the judgment below in light of the records, it is just for the court below to hold the charge of larceny of this case not guilty on the ground that there is no proof of crime, and there is no violation of rules of logic and experience and free evaluation of evidence.

2. As to the crime of intimidation

In order to establish a crime of intimidation, the content of the harm and injury notified must be sufficient to cause fears to ordinary people, taking into account the various circumstances before and after the act, such as the offender and the other party’s tendency, surrounding circumstances at the time of notification, and the degree of friendship and status between the perpetrator and the other party. However, as long as the other party perceived its meaning by notifying the harm and injury to such an extent, it does not require that the other party realistically cause fears. Thus, regardless of whether the other party realistically caused fears, the elements of the crime are satisfied and the crime of intimidation should be interpreted to have been committed (see Supreme Court en banc Decision 2007Do606, Sept. 28, 2007). And the act of notifying the harm and injury in the crime of intimidation shall be based on ordinary language, or, depending on circumstances, it may be said that the harm and injury may be threatened (see Supreme Court Decisions 74Do2727, Oct. 7, 197; 209Do4609, May 6, 209).

피고인의 주장에 의하더라도, 피고인은 피해자와 횟집에서 술을 마시던 중 피해자가 모래 채취에 관하여 항의하는 데에 화가 나서, 횟집 주방에 있던 회칼 2자루를 들고 나와 죽어버리겠다며 자해하려고 하였다는 것이다. 이를 앞서 본 법리에 비추어 보면, 피고인의 행위는 단순한 자해행위 시늉에 불과한 것이 아니라 피고인의 요구에 응하지 않으면 피해자에게 어떠한 해악을 가할 듯한 위세를 보인 행위로서 협박에 해당한다고도 볼 수 있다.

Nevertheless, the lower court, based on the circumstances stated in its reasoning, did not recognize the fact of intimidation and sentenced not guilty of this part without examining detailed matters. In so doing, the lower court erred by misapprehending the legal doctrine regarding intimidation or by failing to exhaust all necessary deliberations. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, the part of the lower judgment regarding the crime of intimidation is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)