[1] Whether the crime of interference with business can be applied to a public official’s obstruction of performance of official duties (negative)

[2] The case reversing the judgment of the court below which acknowledged the crime of interference with business against the act of causing disturbance that constitutes a force in the public service center of public agencies

[1] [Majority Opinion] The legal interest protected under the Criminal Act in the crime of interference with business is to protect a person’s social and economic activities through duties. As such, “business” or “business” refers not only to economic activities, but also to all social activities continuously performed by a person in his/her social status. Meanwhile, “performance of official duties” means widely performing duties that public officials can handle. Considering that the legal interest protected under the Criminal Act is to protect the functions of the State or public institutions specifically performed by public officials, the crime of interference with business should be established only where the performance of official duties is legitimate, and the lawful performance of official duties should be deemed as one where the act falls under the abstract authority of the public official, but also meets the legal requirements and methods concerning the specific performance of official duties. Thus, the crime of interference with business and interference with business should be punished separately for the crime of interference with business, as well as for the crime of interference with business to be protected by public officials, and there is no need to protect public officials separately from the crime of interference with business in the form of violence, other than the crime of interference with business.

[Dissenting Opinion by Justice Yang Sung-tae, Justice Ahn Dai-hee, and Justice Cha Han-sung] Since official duties performed by a public official are continuously engaged in duties in a social position as a public official, official duties are included in the concept of “business” under the crime of interference with business as a matter of course, and unless there is any express provision that excludes official duties in the crime of interference with business, public duties are also included in the crime of interference with business. In addition, the crime of interference with business is generally protected as a legal interest in human social and economic activities, and public officials’ freedom of character and economic activities should also be protected, and public officials’ duties should not be excluded from the crime of interference with business merely on the ground that public duties are official duties. Therefore, if public officials who have no legal force to exclude those who interfere with the execution of official duties have no legal force by means of violence and intimidation, there is no difference in the act of interference with business to general individuals, and thus, if the Criminal Act newly establishes a provision on interference with business by destroying data or by improper operation of data on computers, etc., and thus, public officials should not be punished from the crime of interference with business.

[2] The case holding that the judgment of the court below which acknowledged the crime of interference with business on the ground that the civil petitioner's act of putting the civil petitioner at a large level while demanding an interview with the commissioner of a district police agency with the commissioner of a district police agency with respect to the handling of the petition case was erroneous in the misapprehension of legal principles as to the scope of the crime of interference with business established on the ground that the police officer's act of obstructing the investigation-related

[1] Article 314(1) of the Criminal Act / [2] Article 314(1) of the Criminal Act

[1] Supreme Court Decision 95Do1959 delivered on January 26, 1996 (Gong1996Sang, 838) (amended) Supreme Court Decision 2002Do583 delivered on March 14, 2003 (amended)

Defendant 1 and one other

Defendants

Daejeon District Court Decision 2009No222 Decided April 30, 2009

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

The grounds of appeal are examined.

1. The crime of interference with business under the Criminal Act is established when a person interferes with another’s business by spreading false facts or by deceptive means or by force (Article 314(1)), or by destroying data processing devices, such as computers, or special media records, such as electronic records, or by inputting false information or improper orders into data processing devices, or by causing interference with data processing by other means (Article 314(2)). The protected legal interest in the crime of interference with business is to protect a person’s social and economic activities through business. As such, the term “business” subject to protection refers to a business or business engaged in an occupation or continuously, and the term “business” or “business” refers to all social activities continuously performed by a person in a social status, rather than merely means economic activities.

However, the Criminal Act, separate from the crime of interference with business, provides that an act of obstructing the performance of official duties by assault, intimidation, or deceptive scheme is an act of obstructing the performance of official duties (Articles 136(1) and 137). In the crime of obstruction of performance of official duties, the term “performance of official duties” in the crime of obstruction of performance of official duties means performing duties that can be widely handled by public officials. Considering that the protected legal interest of this crime is to protect the functions of the state or public institution specifically performed by public officials, the crime of obstruction of official duties is established only in cases where the performance of official duties is legitimate, and the term “legal performance of official duties” refers to cases where the act is not only within the abstract authority of a public official, but also meets the legal requirements and methods for the specific performance of official duties (see, e.g., Supreme Court Decision 2007Do9794, Nov. 13, 2008).

As such, the crime of obstruction of business and the crime of obstruction of performance of official duties are different from the protected legal interests and protected objects, as well as the crime of obstruction of business. In other words, the crime of obstruction of performance of official duties is limited to cases of assault and intimidation, and does not constitute the crime of coercion of official duties (Article 136(2)), the crime of insult of the National Assembly (Article 138), the crime of obstruction of performance of official duties (Article 139), the crime of obstruction of secret display (Article 140-2), the crime of invalidation of compulsory execution of real estate (Article 141(1)), the crime of destruction of public goods (Article 141(2)), the crime of obstruction of performance of official duties (Article 142), and the crime of obstruction of official duties (Article 144), and the crime of obstruction of official duties (Article 141(2)). In addition, the Criminal Act also provides various individual and specific provisions to punish the act of obstruction of official duties other than the crime of obstruction of business.

Therefore, separately from the crime of interference with business, the Criminal Act stipulates the crime of obstruction of performance of official duties in distinction from private duties and official duties, and the purpose of punishing public officials only in cases of obstructing the execution of official duties by means of violence, intimidation, or deceptive means, and therefore, it is reasonable to interpret that the act of obstructing official duties performed by public officials cannot be subject to the crime of interference with business.

Unlike this, Supreme Court Decisions 95Do1959 delivered on January 26, 1996, and 2002Do5883 delivered on March 14, 2003, which held that the crime of interference with business is established in cases where a public official interferes with a public official’s normal performance of duties by force or resulting in a result of interference with business, are modified by this judgment.

2. In full view of the evidence as stated in the judgment below, the court below acknowledged the crime of interference with business on the ground that the Defendants’ act of taking care of the police officers who requested the interview of the commissioner of the Chungcheongnam-nam Provincial Police Agency or the first floor public service center to hold an interview with the commissioner of the district police agency in connection with the handling of the authentic case and neglecting his behavior would interfere with the police officers’ investigation-related duties. In light of the above legal principles, the judgment of the court below is erroneous in the misapprehension of legal principles

The Defendants’ ground of appeal pointing this out is with merit.

3. Therefore, the judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

In addition to the Dissenting Opinion by Justice Yang Sung-tae, Justice Ahn Dai-hee, and Justice Cha Han-sung, the assent of all participating Justices is consistent with the Majority Opinion by Justice Park Si-hwan.

4. Dissenting Opinion by Justice Yang Sung-tae, Justice Ahn Dai-hee, and Justice Cha Han-sung

In the crime of interference with business, “business” is naturally included in public duties performed by public officials, and where public officials performing their duties exercise force not falling short of the degree of assault or intimidation, thereby obstructing their performance of official duties, the crime of interference with business shall be deemed established.

In the crime of interference with business, the term “business” in the crime of interference with business refers to the entire business or business that continues to be engaged in on the basis of a job or social position, and the Supreme Court has maintained its firm position (see, e.g., Supreme Court Decision 2004Do8701, Apr. 15, 2005). However, since a public official’s duty is continuously engaged in a social position as a public official, it should be included in the concept of “business” in the crime of interference with business as a matter of course, and unless there is any express provision that excludes public duties in the crime of interference with business, public duties shall also be included in the crime of interference with business. In addition, the legal interest protected by the crime of interference with business is the freedom of people’s social and economic activities. A public official’s individual is performing his/her social activities through his/her public service, and the public official’s individual should also be protected, and thus his/her individual’s freedom of expression of character and activities through his/her public service should not be excluded from the business of interference with

The Criminal Act limits the types of acts of obstruction of the performance of official duties to violence, intimidation, or deceptive means is premised on the fact that the act of obstruction of the performance of official duties can be performed by exercising force against resistance by force, etc. to interfere with the execution of official duties if the legitimate force can be mobilized. However, due to the development of democracy, the awareness of the people's rights has improved, and the State's welfare has been promoted, even if the State or public institutions meet the legitimate requirements for the exercise of force against the people, it is not only to refrain from exercising force, but also to provide citizens with welfare benefits rather than exercising force, or to expand the scope of official duties to provide convenience necessary for social life. However, in a case where there is a resistance by force, etc. that does not reach the force of a public official who does not have the ability to exclude the person from the execution of official duties due to the nature of the official duties, the public official's act of obstruction of the performance of official duties can not be practically executed by excluding such acts by force, and thus, the act of obstruction of the performance of official duties should not be punished.

With the development of electronic information technology, the Criminal Act was newly established in 1995 in order to punish the act of destroying an information processing device, such as a computer, or interfering with business by using unlawful methods such as causing interference with data processing. The crime of obstruction of business was only added to the act of nullifying special media records, such as electronic records, used by public offices (Article 141(1) of the Criminal Act), but did not newly establish a penal provision. While several penal provisions were newly established or supplemented to cope with crimes involving data processing device or special media records, such penal provisions are only subject to each special constituent act, and it does not properly cope with various types of acts subject to punishment under Article 314(2) of the Criminal Act. Since the Criminal Act did not stipulate interference with business, the crime of obstruction of business does not constitute an act of destroying data or interference with business by using data processing device, such as electronic records, which are used by public offices, but does not constitute an unlawful act of interference with business by using data processing device, such as damage to computer or interference with business.

The Majority Opinion argues that, on the grounds that official duties do not constitute “business” under the crime of interference with business, official duties subject to protection are required to be lawful in the case of the crime of interference with business. In the case of interference with business, “business” subject to protection is exempted from the infringement by another person’s unlawful act, and the contract or administrative act, etc., which is the basis of the relevant duties, is not necessarily lawful (see Supreme Court Decision 91Do944, Jun. 28, 1991, etc.) and is distinguishable from the crime of interference with business requiring the legality of official duties. However, “business” protected by the crime of interference with business is limited to the case where the need for protection under the Criminal Act exists, and the existence of the need for protection under the Criminal Act must be determined individually depending on the nature and content of the business. Therefore, the degree of legality to be installed may vary depending on the nature and content of the business, and the official duties included in the crime of interference with business may be demanded differently from the private duties of an individual. Therefore, in the crime of interference with business, the Majority Opinion cannot be justified.

Above all, if it is deemed that the crime of interference with business is not established as in the Majority Opinion, it would result in imbalance of punishment difficult to understand. According to the Majority Opinion, a public institution’s act of avoiding a disturbance falling under the power would not establish the crime of interference with business, unlike the general business place. In addition, if it interferes with the duties of private university teachers and staff by exercising force, it would be punished as the crime of interference with business, rather than the crime of interference with business, and it would not be punishable if it interferes with the duties of the teachers and staff of the National University. In addition, it is difficult for the general public to think that the duties of the general business place should be more protected than public duties, or that the duties of the national university should be less protected than those of the private university and college, and it is difficult for the legislative parties under the Criminal Act to recognize the establishment of the crime of interference with business with business on public duties by taking into account such factors. In other words, it would result in the imbalance of punishment not anticipated by the legislators, and it would be difficult to encourage the emotional disturbance of petitioners in the public institution.

For the same reason, we oppose the Majority Opinion that the crime of interference with business cannot be applied to the act of obstructing a public official’s official duties by force. Therefore, the Supreme Court Decisions 95Do1959 Decided January 26, 1996, which recognized the establishment of the crime of interference with business by deeming that the normal performance of duties or the risk of interference with business was caused by the exercise of force against public officials, and the Supreme Court Decisions 95Do1959 Decided January 26, 196, which recognized the crime of interference with business, should be maintained, and the lower court’s determination that found the Defendants guilty of the crime of interference with business by neglecting a large interest on the public official performing duties and

5. Concurrence with Justice Park Si-hwan

On December 29, 1995, the Criminal Act was amended (Act No. 5057), a large supplement legislation was made for various types of crimes, such as various types of computers. That is, the crime of invalidation of secrets in the line of duty (Article 140(3)), crime of invalidation of public documents (Article 141(1)), crime of forgery or alteration of public electronic records (Article 227-2), crime of false entry of original notarial deeds (Article 228(1)), crime of fabrication or alteration of original notarial deeds (Article 232-2), crime of false recording (Article 314(2)), crime of interference with business (Article 316(2)), crime of interference with exercise of rights (Article 323), crime of destruction of rights (Article 347-2), crime of destruction of property, etc. (Article 366) or special media records, etc. related to the above special media records or new records related to electronic records were not subject to punishment or new changes of the Criminal Act.

Furthermore, if the act of interference with business of Article 314(2) of the Criminal Act on the information processing unit newly established due to the amendment of the foregoing Act or on the special media records of a public official or a public office is relevant to the information processing unit or special media records of the public official or a public office, the act is mostly a crime of invalidation of public documents (Article 141(1)), a crime of forgery or alteration of public electronic records (Article 227-2), a crime of false entry of the original of a notarial deed (Article 228(1)), or a crime of false entry of the original of a notarial deed (Article 228(2) and (3), Article 71 subparag. 9 and 10 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and thus, it is not a problem

Ultimately, the establishment of Article 314(2) of the Criminal Act cannot serve as the basis for the opinion that a public official may be punished for the crime of interference with business even in cases where he/she interferes with his/her official duties by force or by the method prescribed in Article 314(2) of the Criminal Act. The establishment of a new provision does not result in a realistic need to take the above interpretation theory on the ground that the new provision

Chief Justice Kim Young-ran (Presiding Justice)