Defendant

Defendant and Prosecutor

Private Armed Forces

Attorney Lee Jae-ho et al.

Busan District Court Decision 2010Gohap3521 Decided December 28, 2010

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Of the facts charged in the instant case, the charge of obstruction of business due to the exercise of force against Nonindicted 2 is acquitted.

1. Summary of grounds for appeal;

A. Defendant

(1) Fact-finding or misunderstanding of legal principles

(A) The part of obstruction of business due to the exercise of power against community credit cooperatives of ○○ Metropolitan City and Private Passenger Taxi Transportation Business Association

The defendant, who was the chief director of the ○○○ Metropolitan City Private Taxi Association (hereinafter referred to as “○○ Private Taxi Association”), prepared a public document as stated in the facts charged No. 1-A and sent it to the chief director of the ○○○ Private Taxi Association, which is an affiliated organization. However, the contents contained in the public document were resolved through lawful procedures at the board of directors of the ○○ Private Taxi Association, and the defendant merely notified the chief director of the association, who is an affiliated organization, as part of performing duties as the chief director, of the contents of the resolution by the board of directors of the association. As such, the above acts of the defendant do not constitute the crime of interference with business, and there was no criminal intent to interfere with the business of the defendant. On the contrary, the court below concluded that the defendant committed the crime of interfering with the issuance of ○○ Private Taxi by force to the ○○ Private Taxi Association as stated in the facts charged No. 1-A. 2000, which affected the conclusion of the judgment.

(B) The part concerning obstruction of business due to the exercise of force against Nonindicted 2

The defendant requested that the non-indicted 2, who is the representative of the △△△ Automobile Trading Co., Ltd., who is the representative of the △△△△△△ in the indictment, post office call to the following purport. In other words, because the above non-indicted 2, which contained the advertisement pictures of the △△△△ Military Trading Co., Ltd. posted at the ○○○ Personal taxi Newspapers, misleads the general public as a commercial agent for the above △△△△ Military Co., Ltd., due to frequent events, there is a demand that the above non-indicted 2 be deducted the above △△△ Military Co., Ltd.'s paragraphs. In the future, in the advertisement, the defendant requested the deduction of the △△ Military Co., Ltd.'s photograph for the purpose of interfering with the publication of the victim non-indicted 3's personal taxi newspaper as stated in the facts charged. However, the court below erred in the judgment below by misapprehending the fact that the defendant interfered with the above non-indicted 2's publication of the victim's personal taxi newspaper.

(Colonel, even if the defendant requested the above non-indicted 2 to the same purport as the facts charged, it is merely conducted by the defendant to prohibit the above non-indicted 2 from publishing advertisements, not conducted with the purpose of obstructing the publication of the victim non-indicted 3's ○○ Private Taxi, and the defendant is not in a position to exercise any influence on the above non-indicted 2, who is not related to the ○○ Private Taxi Association. Thus, the defendant should be pronounced not guilty of the above facts charged, and the court below convicted the above facts charged, which is erroneous in the misapprehension of facts or by misapprehending legal principles, which affected the conclusion of the judgment).

(C) Defamation part

Although the Defendant prepared the same document as stated in the facts charged in paragraph (2) of the facts charged and distributed it to the members of the ○○ individual taxi association, the contents indicated in the above document shall be deemed distorted or distorted from among the contents of articles posted by Nonindicted 3 on the ○○○ individual taxi newspaper as a whole and for the sake of the public interest by viewing that the contents of articles distorted or distorted among the contents posted by Nonindicted 3 on the ○○○○○ individual taxi newspaper, and thus, its illegality is reasonable and thus, it does not constitute defamation. However, the court below concluded otherwise that the Defendant committed the crime of damaging the reputation of the victim Nonindicted 3 as stated in paragraph (2) of the facts charged in the judgment of the court below. In so doing

(2) The point of unfair sentencing

The punishment (fine 5 million won) imposed by the court below on the defendant is too unreasonable.

(b) Prosecutors;

The sentence imposed by the court below on the defendant is too uneasible and unfair.

2. Judgment on the grounds for appeal (the part concerning the defendant's assertion of mistake of facts or misapprehension of legal principles)

A. Part concerning obstruction of duties due to the exercise of force against community credit cooperatives of ○○ individual taxi cooperatives;

In full view of the evidence duly adopted and examined by the court below and the court below, it is recognized that the defendant interfered with the publication of the victim non-indicted 3's personal taxi newspaper by force to the ○○○ Personal taxi association and community credit cooperatives under the circumstances described in Paragraph 1-A of the criminal facts stated in the judgment below. Thus, this part of the defendant's assertion is without merit.

B. Defamation part

In full view of the evidence duly adopted and examined by the court below and the trial court, the defendant's assertion on this part is not justified since it is recognized that the defendant defames the victim non-indicted 3 by openly pointing out false facts as stated in Paragraph 2 of the facts constituting the crime in the judgment of the court below. (In light of the above evidence, the defendant's assertion that the defendant believed the contents of the facts stated in the facts charged to be true and it does not seem that there was an objective reason for believing the same as the above, and thus, it is difficult to accept the defendant's argument that the illegality should be excluded by Article 310 of

C. The part concerning obstruction of business due to the exercise of force against Nonindicted 2

(1) Facts charged

In the above newspaper published on April 29, 2009, the Defendant published an article to the effect that “The Supreme Court has the responsibility to suspend the TIP business and to verify the truth,” which the victim started at the time of the president of the said association, the Defendant: (a) published the article to the effect that “The Defendant has the responsibility to suspend the TIP business (Txi) which the victim started at the time of the president of the said association; and (b) failed to publish the advertisement in the above newspaper by exercising pressure on the △△ car dealer who published the advertisement in the above newspaper, thereby preventing the publication of the advertisement in the above newspaper by exercising pressure on the △△△ car dealer who published the advertisement in the above newspaper.”

Therefore, around May 18, 2009, the Defendant sent a telephone to Nonindicted 2, the representative of the △△△ Automobile Trading Company, at the above association office located in Busan ( Address omitted) around May 18, 2009, and the Defendant stated to the effect that “the ○○ Personal taxi newspaper is continuously published because of the fact that the party is going to place an advertisement in the individual taxi newspaper. It would be disadvantageous when advertising.”

However, the above △△△ Motor Vehicle Trading Company is the main business of the private taxi trading brokerage, and was in a position of being economically and socially affected by the said association.

Accordingly, the Defendant interfered with the victim’s operation of the newspaper company and the publication of the newspaper by force above.

(2) The judgment of the court below

The lower court convicted the Defendant of the above facts charged by comprehensively taking into account the Defendant’s partial statements in the lower court’s court, Nonindicted 3’s statements in the lower court’s court, Nonindicted 4’s partial statements in the lower court’s court, Nonindicted 2’s fact-finding confirmation, investigation report on the preparation of the Prosecutor’s Assistants to Prosecution (hereinafter “Nonindicted 2 Telephone Statements”) and copies of the advertisement of ○○ Personal

(3) Judgment of this Court

The term “component force” in the crime of interference with business refers to all the forces capable of suppressing and mixing a free will of a person. As such, violence, intimidation, as well as social, economic, and political status and pressure based on royalty, etc. are included therein. In reality, the victim’s free will is not required to be controlled. However, in light of the offender’s status, number of persons, surrounding circumstances, etc., the determination of whether the crime constitutes force ought to be made objectively by taking into account all the circumstances, such as the date and place of crime, motive, purpose, number of persons, capacity, mode of duty, type of duty, type of duty, etc. (see, e.g., Supreme Court Decisions 2010Do9186, Nov. 25, 2010; 9Do495, May 28, 1999).

Based on the above legal principles, Nonindicted 2, Nonindicted 3, Nonindicted 4, Nonindicted 2, Nonindicted 2, and Nonindicted 3, were posted in the above-mentioned newspaper, and Nonindicted 2, Nonindicted 4, Nonindicted 1, and Nonindicted 4, Nonindicted 2, Nonindicted 2, Nonindicted 3, and Nonindicted 4, Nonindicted 4, were posted in the newspaper, and Nonindicted 2, Nonindicted 4, Nonindicted 2, Nonindicted 1, and Nonindicted 4, Nonindicted 2, Nonindicted 2, Nonindicted 1, and Nonindicted 3, Nonindicted 2, Nonindicted 2, Nonindicted 3, and Nonindicted 4, Nonindicted 4, Nonindicted 208, were posted in the newspaper at the time of the above-mentioned newspaper. In light of the fact that Nonindicted 2, Nonindicted 2, Nonindicted 3, and Nonindicted 4, Nonindicted 2, Nonindicted 1, and Nonindicted 2, Nonindicted 3, the Defendant, who was a member of the Nonindicted 3, were posted in the newspaper at the time of the publication of the newspaper.

However, with respect to each question of the defense counsel and the presiding judge who followed the above prosecutor's questioning and answer in the trial court, the above non-indicted 2 made a statement contrary to the prosecutor's answer to the prosecutor's question and the above fact confirmation and investigation report by reply to the purport that the defendant only talked about the telephone call-type photograph at the time of the above telephone conversation, and that such speech was only made at the time of the opening of the office of the Exemplary Drivers Association, and that there was a telephone conversation at the time of the above telephone conversation, and thus, it is difficult to use the part of the non-indicted 2's legal statement and each of the above fact confirmation and investigation reports as evidence of conviction (On the other hand, the victim's non-indicted 3 told the above non-indicted 2 from the above non-indicted 2 at the court of the court below and the investigative agency to the effect that the defendant posted pressure as to the suspension of advertisement as stated in the facts charged, but it is not admissible as hearsay evidence pursuant to Article 36 (2) of the Criminal Procedure Act.

(5) Even if the above non-indicted 2 did not appear to have been in the position of the chairperson of the non-indicted 2's association, the defendant and the non-indicted 2's personal taxi's non-indicted 2's personal taxi-related company's personal taxi-related company's non-indicted 9's personal taxi-related company's personal taxi-related company's non-indicted 2's personal taxi-related company's non-indicted 9's personal taxi-related company's personal taxi-related company's non-indicted 9's personal taxi-related company's personal taxi-related company's non-indicted 2's personal taxi-related company's non-indicted 9's personal taxi-related company's non-indicted 2's personal taxi-related company's non-indicted 3 company's non-indicted 2 company's non-indicted 2 company's non-indicted 2 company's non-indicted company's non-indicted 2 company's non-indicted 2 company's non-indicted.

Therefore, even though the above facts charged constitute a case where there is no proof of crime and should be pronounced innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act, the court below rendered a guilty verdict of the above facts charged. The court below erred by misapprehending the facts and affecting the conclusion

3. Conclusion

Therefore, the appeal by the defendant as to the obstruction of business due to the exercise of power against the above non-indicted 2 is with merit, and the above part of the judgment below should be reversed, and since the court below deemed that the remaining criminal facts of the defendant and the concurrent crimes under the former part of Article 37 of the Criminal Act are concurrent crimes and sentenced to a single punishment, the judgment of the court below is reversed in its entirety under Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows after the pleading

1. Interference with business;

From July 1, 2002 to June 30, 2010, the Defendant posted an article to the effect that the Defendant was in charge of the chief director of the ○○ Personal taxi association, who was the former chief director of the said association, and the victim Nonindicted 3, who was the publisher and editor of the ○○○ Private taxi newspaper, was “verification of the responsibility and truth for the suspension of TIP services by the Supreme Court” in the above newspaper on April 29, 2009, stating that “The Defendant, the chief director of the said association, is the Defendant, the responsibility for the suspension of TIP services (Txi, taxi informatization services) that the victim began at the time of the chief director of the said association,” which read, “The Defendant was in charge of the duties of the chief director of the said association, who was in charge of the ○○○ Military taxi association, who was in charge of the said newspaper, was unable to publish the advertisement in the said newspaper by exercising pressure to the ○○ individual taxi association, thereby blocking the advertising

Thus, around May 18, 2009, the defendant proposed an emergency consent proposal to prohibit the president of the above community credit cooperative from posting advertisements to ○○ Personal taxi newspaper in the office of the above community credit cooperative in Busan around May 18, 2009, and then the community credit cooperative or the association members of the community credit cooperative from posting advertisements to ○○○ Private taxi newspaper. Since then, the defendant decided to keep the community credit cooperative or the association members of the community credit cooperative or the association from standing under the name of the president of the union, which includes the contents of the recommendation, from posting advertisements to ○○○ Private taxi newspaper.

However, the above community credit cooperative is a separate juristic person, but for executive officers of the above community credit cooperative, the above community credit cooperative shall be qualified for membership of the union, and when the member is deprived of membership, the above community credit cooperative's qualification as executive officers is deprived of the above union, and in fact, the above recommendation cannot be complied with under the influence of the union.

Accordingly, the Defendant interfered with the victim’s operation of the newspaper company and the publication of the newspaper by force above.

2. Defamation;

On May 2, 2009, the Defendant issued a false article on May 22, 200 under the title of “the fact that members should know about the false article about the contents of ○○ individual taxi newspaper” against the members of the said association. The ○○ individual taxi newspaper issued by No. 12 on April 29, 2009 is a newspaper of a special weekly nature where HC, who had been employed as the president of the former association, is the issuer, and the contents of the article “the Supreme Court confirms the responsibility and truth to suspend TIP business” are false facts based on an individual judgment that is entirely different from the truth. It is a big problem for the Defendant to request a separate attention so that it does not go against the black publicity of the forces that intend to see the association. The publication of false article would be a big problem. The content of a false article would change the contents that “the will of those who have failed to know about the contents of ○○ individual taxi newspaper, which is published on April 12, 2009.”

However, the main contents of the article published in the 00 individual taxi newspaper are as follows: "The defendant promoted the business jointly with the association on the condition that the participating companies bear the most of the costs incurred in the business, and the defendant discontinued the business through a fatal combination with the electronic device for taxi attachment supplied by the supplier in accordance with the TIP business, which caused damage to the participatory company by being bound by the civil litigation claiming the payment of KRW 8.1 billion from the supplier company, which caused the burden of the participant company, and the statement of appraisal presented by the defendant asserting that the electronic device is defective in the electronic device is made in a fake." This was based on the fact-finding of the Supreme Court Decision 2006Do2074 Decided December 14, 2007 and the Busan District Court Decision 2007No5189 Decided February 14, 2008.

Nevertheless, as seen above, the Defendant had damaged the reputation of the victim by publicly expressing false facts by means of pretending that the victim posted false articles.

1. Part of the defendant's oral statement at the court below

1. Each part of the statements of the witness at the court of original instance by Nonindicted 3 and 4

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution (including the part concerning the statement recorded by Nonparty 3);

1. A copy of each judgment (Supreme Court Decision 2006Do2074 Decided December 14, 2007 and Busan District Court Decision 2007No5189 Decided February 14, 2008).

1. Notification of recommendations to prohibit the publication of advertisements of "○○ Private Taxi", and a copy of the board of directors' meeting minutes, advertisements of individual taxi newspapers, and copies of articles of ○○ Private taxi newspapers, each of the contents of false articles of "○○○ Private Taxi Newspapers" should be known to the association members;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 314 (1) of the Criminal Act (Interference with Business on Market, Selection of Fines), Article 307 (2) ( point of defamation and Selection of Fines)

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Punishment for Crimes of Interference with Business with Aggravated Punishment Noggravated Punishment)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Of the facts charged in the instant case, the summary of the obstruction of business due to the exercise of force against Nonindicted 2 is as described in Article 2-3(1) of the Criminal Procedure Act, which constitutes a case where there is no proof of crime for the same reason as described in Article 2-3(3) of the same Act, and thus, the judgment of not guilty pursuant to the latter part of Article 325 of the

Judges Kim Ho-ho (Presiding Judge)