[1] The meaning of “defensive force” and standard of determining whether the crime of interference with business constitutes force

[2] In a case where the Defendant, who managed facilities, boilers, electricity, etc. in Sari-Ba operated by Company A, was indicted for interfering with Company A’s business by failing to inform the location of the electric power distribution team and the operation method of each Stari-Ba on the ground that Company A unfairly dismissed him/her in the process of handing over the Sari-Ba to Company B, the case holding that it is difficult to readily conclude that the Defendant’s act constitutes a force sufficient to suppress Company A or B’s free will to give him/her the business transferee for the operation of Sari-Ba normally, in full view of all the circumstances

[1] Article 314 of the Criminal Code / [2] Article 314 (1) of the Criminal Code, Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2009Do5732 Decided September 10, 2009 (Gong2009Ha, 1722) Supreme Court Decision 2016Do10956 Decided October 27, 2016

Defendant

Defendant

Attorney Kim Do-young

Seoul Northern District Court Decision 2016No2761 decided July 20, 2017

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined.

1. “In the crime of interference with business” in the crime of interference with business is a form of force that is capable of suppressing and mixing a person’s free will, and is not a tangible or intangible, and the victim’s free will should not be restricted in reality. However, in light of the offender’s status, the number of persons, and surrounding circumstances, etc., the degree of sufficient to suppress the victim’s free will should be determined objectively by taking into account all the circumstances, such as the time and place of the crime, motive and purpose of the crime, number of persons, capacity, mode of duty, type of duty, and status of the victim (see, e.g., Supreme Court Decision 2016Do10956, Oct. 27, 2016).

2. The summary of the facts charged of this case is as follows: “The Defendant was a person who managed facilities, boilers, electricity, etc. in the Seoul Special Metropolitan City, Nowon-gu (hereinafter “the instant so-called “the instant so-called “victim”), and on March 3, 2015, the Defendant was unfairly dismissed the Defendant in the process of handing over the instant so-called the instant so-called Non-Party 1 Co., Ltd. (hereinafter “victim”) to Non-Party 2, on the ground that he was unfairly dismissed the Defendant. However, the Defendant refused to accept the business transfer system, such as refusing to inform him of the location of boiler power source, the location of the electric power distribution team in which the boiler was installed, the location of the advertising signboard, and the operating method of each of the above ice locations.”

3. As to this, the lower court found the Defendant guilty of the instant facts charged on the ground that the Defendant’s above act of refusing to take over the business constitutes “defensive force” as provided by the crime of interference with business, and thereby, it could be recognized that the victim’s privacy or business operation was obstructed.

4. However, in light of the following circumstances known by the aforementioned legal principles and records, the above determination by the court below is difficult to accept.

① After entering into a lease agreement with Nonindicted Co. 3 Co., Ltd., the owner of the building, the victim operated the said friendship, and the Defendant was in charge of managing facilities, boilers, electricity, etc. in the instant friendship.

② Nonindicted Co. 3 terminated the above lease agreement with the victim, and entered into a new lease agreement with Nonindicted Co. 2. Nonindicted Co. 2 did not succeed to the employment relationship with the Defendant, and the victim was notified of dismissal to the Defendant on March 3, 2015.

③ Around March 3, 2015, Nonindicted Party 2, a new lessee of the instant letter of credit, had the Defendant run the instant letter of credit, and had changed to the transferee. However, the Defendant did not inform the Defendant of the location of the electric power distribution team of the instant letter of credit and the operating method of each string location.

④ Prior to this, Nonindicted Party 2, who had previously experienced in operating Mana, found the operating method for facilities, etc. in Mana in the manner of viewing various positions by operating Mana. During that process, the location of the advertising signboard was found only three days, and the signboard, etc. was set up for three days.

⑤ Although the Defendant did not notify the location, etc. of the electric power distribution team of the instant private letter, the instant private letter was normally conducted on the following day. After that, even if the boiler’s boiler position was installed, the boiler was not operated. Nonindicted 2 could continue to use the boiler after having contacted the repairer with the phone number as stated in the boiler.

However, in the first instance court, Non-Indicted 2 stated that the reason why the boiler's circular pumps were broken down is that the Defendant refused to take over the boiler, or that it was not known whether it was caused by the aging of the circular pumps. It cannot be readily concluded that such failure was due to the failure of the Defendant to inform the operation of the electric power distribution team.

6) On the other hand, Nonindicted 2 did not receive Turkey from the Defendant to correct all things in the instant friendship, but purchased and used Turkey through the clothes supplier.

Ultimately, in light of the motive of the Defendant’s act, its form and degree, etc., it is difficult to readily conclude that the Defendant’s act of not informing the location of the electric power distribution team and the operating method of each of the respective locations constitutes a force sufficient for the victim or Nonindicted Party 2 to control Nonindicted Party 2’s free will or the victim’s free will to normally engage in the business operation of the instant letter to the Nonindicted Party 2. Moreover, it is difficult to deem that Nonindicted Party 2, who acquired the instant letter due to the Defendant’s aforementioned act, was unable or considerably difficult to normally operate the said letter or letter due to the Defendant’s act.

Nevertheless, the lower court found the Defendant guilty of the instant facts charged on the grounds as indicated in its holding. In so doing, it erred by misapprehending the legal doctrine on the force of the crime of interference with business, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

5. 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 Kim Yong-deok (Presiding Justice)