(영문) 부산지방법원 2017.8.11.선고 2016노4409 판결

Before the Defendant’s closing of the hotel entrance, G had already been going through the hotel construction, and the Defendant’s side was aware of and did not resist or refrain from receiving profits from leasing part of a hotel. In other words, G was lawfully occupying and making profits from the hotel under the understanding of the Defendant, and G was actually in a peaceful operation of G’s hotel business and lease business, regardless of whether the ownership of the hotel belongs to the ownership of the hotel, and thus, it constitutes crime of interference with business. Nevertheless, the lower court acquitted the Defendant of this part of the facts charged on the ground that there was no proof of crime, and erred by misapprehending the legal doctrine, thereby affecting the conclusion of the judgment.

B. Unreasonable sentencing

Punishment (one million won of a fine) declared by the court below is too unhued and unfair.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

1) Summary of this part of the facts charged

From July 6, 2014 to August 5, 2014, the Defendant obstructed G hotel construction work and lease business by force, such as installing dump trucks at the entrance of the above hotel and preventing people from having access to the building, although there is no right to possess ownership or direct possession of the above hotel at the E hotel located in Busan Island D, from around 22:00 to August 5, 2014.

2) The judgment of the court below

The lower court found the Defendant guilty of this part of the charges on this part of the charges on the ground that G is insufficient to recognize that G acquired the ownership of a hotel due to payment in kind, sale in kind, etc., and that G acquired the ownership of the hotel and did not have the ownership or possession right to the hotel with respect to the debtor F or the Defendant, by means of payment in kind, sale in kind, etc., and that there is no other evidence to acknowledge otherwise.

① Around May 24, 2011, the Defendant and the Dong business relationship offered a hotel site and a newly-built hotel as security for transfer while borrowing funds from G as of May 24, 201. Accordingly, it is reasonable to deem that the registration of ownership transfer for the hotel site was completed in the future around May 27, 201 and around that time, the change of the name of the owner of the building for the hotel was done. There is no evidence to prove that G finally acquired the ownership of the hotel site and the newly-built hotel due to payment in substitutes or sale.

(2) In order for G to acquire ownership by exercising the security right to a hotel site and a hotel, a mortgagee shall notify an obligor, etc. of the appraised value of the liquidation money after the due date of payment of the claim pursuant to Article 3 (1) of the Provisional Registration Security Act, and shall notify the obligor, etc. thereof two months after such notification reaches the obligor, etc., and in such cases, if it is deemed that there is no liquidation money, the notification shall be given. However, there is no evidence to acknowledge that G, who claimed that he/she acquired ownership of the hotel through payment in kind or

③ A prosecutor asserts to the effect that Article 5 of the MOU of this case provides that “A may sell or lease the building in question prior to the lapse of the repayment period only after the completion of the construction shall be entitled to sell or lease the building in question to G after the expiration of the repayment period.” However, in light of the language, structure, and purport of Article 5 of the MOU, it is interpreted to the effect that F, a debtor after the expiration of the repayment period, shall not sell or lease the hotel to any other person without the consent of G, a mortgagee, and it is difficult to interpret that G, as a matter of course, is entitled to acquire the ownership of the hotel without going through the liquidation procedure after the expiration of the repayment period. In addition, if it is interpreted to the effect that G, without going through the liquidation procedure, is transferred the right to dispose of or exclusive right to use the building in question to G, it is sufficient to deem it as null and void as it violates the mandatory provisions of the Provisional Registration Security Act.

3) Determination of the immediate deliberation

A) Relevant legal principles

The term "business" subject to the protection of the crime of interference with business under the Criminal Act refers to a business or business that is engaged in an occupation or continuously, and the contract or administrative act, etc., which is the basis of the business, must not be always lawful, but should be worth protecting from infringement by other persons' unlawful acts (see, e.g., Supreme Court Decisions 2008Do7399, Oct. 23, 2008; 91Do944, Jun. 28, 1991). Whether the business is worthy of legal protection is determined depending on whether the business is actually and objectively conducted and becomes the basis of social activities (see, e.g., Supreme Court Decision 2006Do382, Mar. 9, 2006).

B) Determination on the instant case

In full view of the following circumstances acknowledged by evidence duly adopted and investigated by the court below and the court below, G’s internal hotel work and lease work in G cannot be deemed as the basis of social activities. Therefore, the court below’s judgment not guilty of this part of the facts charged is just, and there is no error of law by misunderstanding of facts or misunderstanding of legal principles as alleged by the prosecutor, and thus, the prosecutor’s assertion is without merit.

① Before the completion of the hotel’s hotel, the Defendant leased the first floor above the hotel for the purpose of the parking lot, among real estate, via a private individual H. After the completion of the hotel, G, who became aware of this fact, drafted a confirmation letter stating that the issue of the liability to return the lease deposit amount of KRW 50,000,000,000, was defective, and H, to G, that “The Defendant received the lease deposit amount of KRW 50,000,000,000,000,000,000,000,0000,000,000,000

② On January 18, 2013, G leased 1st hotel to a hotel for entertainment room, and 2nd hotel for the purpose of office. Around January 21, 2013, the Defendant, who became aware of this fact, leased 1st hotel to a hotel for the purpose of office. Around January 21, 2013, he was issued a summary order of KRW 3 million on July 18, 2014, where the lease agreement on 2nd hotel was terminated on July 2013; the lease agreement on 1st hotel was concluded on July 2013 without entering into a one-year lease agreement on 1st hotel and the lessee could not enter into a new lease agreement on 2nd hotel with the lessee on June 21, 2014, but the lessee could not enter into a new lease agreement on 1st hotel for the first floor until July 2014.

③ Around June 2014, G performed the interior construction of the hotel 6 to 9 stories, but the construction was suspended at the port of the Defendant’s side, which came to know after the completion of the construction. (4) Generally, in the event real estate was transferred for the purpose of securing the obligation, G gains from real estate subject to security transfer is the obligor (see, e.g., Supreme Court Decision 2007Da37394, 37400, Feb. 28, 2008). At the time of the instant transfer, the Defendant’s side was in the position of the mortgagee, G was in the position of the mortgagee, and there was no separate agreement on the right to use and benefit from the hotel after the repayment period between the Defendant and G. Therefore, it is reasonable to deem that the right to use and benefit from the hotel was in the Defendant’s side, and that G was interfered with the Defendant’s legitimate right to use and benefit from the hotel’s internal construction conducted without consultation with the Defendant’s side.

B. Determination on the assertion of unfair sentencing

The Defendant forged a real estate sales contract under G in the name of G and borrowed KRW 200 million from the use of such contract. Such an offense is against the public trust in the authenticity of documents, and is not against the liability for such offense. However, in full view of the equity in sentencing with similar cases in favorable circumstances, such as the recognition of the offense, the fact that there is no previous charge, etc., and other various sentencing conditions such as the Defendant’s age, character and behavior, environment, motive, means and consequence of the offense, etc., it is difficult to see that the lower court’s punishment is too unjustifiable and unreasonable. Therefore, the prosecutor’s above assertion on unreasonable sentencing is without merit.

3. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed under Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition (However, since it is obvious that Article 30 has been omitted, each of the "Article 231" in the application of the law of the court below should be revised as adding each of them under Article 25 (1) of the Regulation on Criminal Procedure because it is obvious that it