2017No3143 Interference with business

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

11, K

12. L.

13. M;

Defendants and Prosecutor (Defendant C)

Modern (prosecution) and Kim Jong-chul (Trial)

Law Firm AC (for all the defendants):

Attorney AD

Gwangju District Court Decision 2017 High Court Decision 22, 45 (Consolidated) Decided August 18, 2017

April 24, 2018

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants 1)

1) misunderstanding of facts or misapprehension of legal principles

A) With regard to the facts constituting the crime of Paragraph 2 of the judgment below, the victim was unable to attend the office of Qport trade union (hereinafter referred to as "port trade union") during working hours beyond the working hours and to receive a daily reduction of work hours. Therefore, there was no victim's work attendance at the time, and since the victim entered the office of placement and work status, the victim went beyond the stage of interfering with the victim's work attendance. Nevertheless, the court below which found the defendant guilty of this part of the facts charged, erred in the misunderstanding of facts or misapprehending of legal principles.

B) As to the facts charged in the judgment below, the victim R, T, and S did not notify the person in charge of the work prior to the work to attend the next day, and do not attend the port labor union office to work, so there is no work in the victims' attendance. Nevertheless, the court below which found the defendant guilty of this part of the facts charged in this part of the facts charged erred by mistake of facts or by misapprehending the legal principles.

2) The assertion of unreasonable sentencing

The sentence of the lower court (Defendant A, B, D, E, and I: each fine of 2 million won, Defendant C, F, G, H, H, and J: each penalty of 1.5 million won, Defendant K, L, and M: each fine of 1.5 million won is too unreasonable).

B. Prosecutor (as to the defendant C)

1) misunderstanding of facts

According to the evidence submitted by the prosecutor, it can be recognized that Defendant C interfered with the victim’s work at work. Nevertheless, the judgment of the court below which acquitted Defendant C from the charge of interfering with the victim’s work at work is erroneous in misconception of facts.

2) The assertion of unreasonable sentencing

The lower court’s sentence against Defendant C is too unhued and unreasonable.

2. Judgment on the misunderstanding of facts or misapprehension of legal principles by the Defendants

A. Part concerning interference with business of the victim (Article 2 of the Criminal facts in the Judgment of the original court)

1) Relevant legal principles

In relation to the crime of interference with business, “business” subject to protection refers to a business or business that is engaged in occupation or continuously, and is worth protecting from infringement by other persons’ unlawful acts, and the contract or administrative act, etc., which is the basis of the business, is not necessarily lawful. In addition, it is sufficient if the establishment of the crime of interference with business does not require the actual occurrence of the result of interference with business, and it does not necessarily require the risk of causing interference with business (see, e.g., Supreme Court Decision 28, Jun. 28, 19

2) Determination

The following circumstances that can be recognized by the lower court and the court’s evidence duly adopted and examined: (i) the victim appears to have been in the position of an air transport union member and not employed at any other place; (ii) the victim appears to have been in the position to continue to work in the air transport union to maintain his livelihood (the number of absence days in June 2016 is only four days); (iii) the victim was working at the air transport union office from the investigative agency to the court of the lower court, but he was still under relatively consistent statement from the Defendants; (iv) the victim was in the attendance time before the air transport union office and the work status board at the time of the instant case, but the victim was unable to attend the office due to the victim’s failure to have been aware of his personal desire to attend the office, and thus, the victim appears to have been in the attendance time of the victim’s failure to reach the work hours at the time of the instant case, and therefore, it is reasonable to conclude that the victim was under the victim’s duty not to attend the office.

B. Part concerning interference with business of the remaining victims (Article 1, 3, and 4 of the crime committed in the judgment of the original court)

The following circumstances acknowledged by the court below and the court of first instance based on evidence duly adopted and investigated by the victims, namely, ① the victims were in the position of air transport union members and did not find any new employment at any other place; ② the victims were in the position of air transport union members to maintain their livelihood; ② the victims were forced to work at the air transport union members at the time of the instant case from the investigative agency to the court of original judgment; ③ the victims were under the relatively consistent statement from the Defendants; ③ the victims were ordinarily in attendance at the air transport union office; ④ the victims were absent from the office; ④ the victims were in the absence of work from the worker; but the victims did not appear to have been subject to work placement from the worker in charge at the time of the instant accident; however, the victims did not appear to have been forced to have been forced to attend the office at the time of the victims’ request for work placement; and therefore, the victims did not appear to have been able to conclude that the victims were forced to have been forced to work at the time of the instant accident.

3. Judgment on the prosecutor's assertion of mistake of facts

가. 원심은 증거에 의하여 인정되는 다음과 같은 사정들, 즉 ① 피해자 이는 고소장 및 경찰 조사에서 피고인 C도 A 등과 피해자의 앞을 가로막았다고만 진술하고 있을 뿐 피고인의 행위에 대하여 구체적으로 진술하지 않았고, 원심 법정에서 당시 피고인이 현장에 있었는지, 피고인이 피해자에게 욕설을 하였는지에 대하여 잘 기억이 나지 않는다고 진술한 점, ② 비록 이 사건 당시 녹취파일에 따라 작성된 녹취서에는 피고인이 당시 "씨발놈, ......줬잖아." "어. 그래"라고 말한 것으로 기재되어 있기는 하나, 피고인은 경찰 조사에서 당시 특별히 말한 사실이 없고 위 녹취파일의 음성이 자신의 음성인지 잘 모르겠다고 진술하였을 뿐만 아니라 위 부분은 A 등 다수의 조합원들이 모여서 피해자를 향해 고성을 지르고 시끄럽게 하고 있던 상황에서 녹음된 것으로 피고인이 피해자를 상대로 그와 같은 말을 하였다고 단정하기도 어려운 점, ③ 이 사건 당시 피해자가 피고인 및 A 등과 서로 적대적인 관계에 있었던 것으로 보이는바, 그와 같은 상황에서 피해자가 당시 현장에 있던 피고인도 A 등과 공모하여 자신을 출근을 막으려고 하였다고 오인하였을 가능성을 배제할 수 없는 점 등에 비추어 보면, 검사가 제출한 증거들만으로는 피고인이 A 등과 공모하여 피해자의 앞을 가로막는 방법으로 피해자의 출근 업무를 방해하였다고 단정하기 어렵고, 달리 이를 인정할 증거가 없다고 판단하였다.

B. The above determination by the court below is justifiable even if it was examined in the trial, and thus, the prosecutor’s allegation of mistake is not accepted.

4. Judgment on the assertion of unfair sentencing

A. Determination on the remaining Defendants except Defendant C’s assertion of unfair sentencing

Although there are circumstances to consider the circumstances leading to the instant crime, the instant crime prevents the Defendants from attending the work of victims by force over several times, and the nature of the crime is not weak. Moreover, there is no change in circumstances that are conditions for sentencing in the trial compared to the lower court.

In full view of all such circumstances as the Defendants’ age, character and conduct, environment, circumstances surrounding the crime, and circumstances after the crime, as well as the aforementioned circumstances revealed in the instant records and pleadings, the lower court’s punishment is only within the scope of reasonable discretion and is not deemed unfair because it is too unreasonable.

B. Determination on the grounds of unfair sentencing by both parties against Defendant C

Although there are circumstances to consider the circumstances leading to the instant crime, the instant crime prevents the victims from attending the work by force over several times, and the nature of the crime is not weak. Moreover, there is no change in circumstances that are conditions for sentencing in the trial compared to the lower court.

In full view of all such circumstances as the Defendant’s age, character and conduct, environment, circumstances surrounding the crime, and circumstances after the crime, etc. as indicated in the instant records and pleadings, in the instant case where there is no change in circumstances that are conditions for sentencing in the trial compared to the lower court’s judgment, the lower court’s punishment is only within the scope of reasonable discretion and is too heavy or unreasonable.

5. Conclusion

Therefore, the appeal filed by the Defendants and the prosecutor is without merit, and it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Presiding Judge and senior containers

Support for Judges' Documents

Judge Dok-un

1) Paragraph (1) of the facts constituting the crime in the judgment of the court below is a co-principal of defendant A, B, C, D, E, F, G, H. I, J, and K. The facts constituting the crime in the judgment of the court below are co-principals of defendant A, B, D, E, F, G, H. I, and the facts constituting the crime in the judgment of the court below, and paragraphs (3) and (4) of the facts constituting the crime in the judgment of the court below are the co-principals of defendant A, B, C, D, E, I, J, L, and M, or "the defendants for convenience".