(a) The number of crimes in which obstruction of one’s exercise of one’s right by force has been committed and the act of conflicting with it has been committed;

B. Exercise of rights by means of violence or intimidation and the crime of attack;

(c) Methods of confinement;

A. In a case where the defendant received a written statement from the person who forced the victim to make up for the recovery of investment money and then received money based on this, if the principal criminal intent of the defendant was to take out the money from the victim, the defendant shall be deemed to have continued to take out the money under the single criminal intent of the single criminal intent after having the defendant prepare a written person by taking advantage of a single criminal intent. Thus, the above act shall be deemed to constitute only the crime of conflict, including the above act.

B. Even if a person has the right to receive property or to acquire property benefits, if he/she receives property or acquires property benefits by means of violence or intimidation to the extent generally acceptable by social norms, such right cannot be deemed a legitimate exercise of rights, and thus constitutes a crime of extortion.

(c) In the crime of confinement stipulated in Article 276(1) of the Criminal Act, an act of confinement refers to an act of restricting physical freedom to prevent a person from leaving a certain place, and its method includes not only physical disability but also cases where a person cannot go out of the fear as an intangible means.

A. Article 324 of the Criminal Act: Articles 350 and 37 of the Criminal Act; Article 276(1) of the Criminal Act

Defendant

Defendant and Prosecutor

Attorney Lee Young-su, Kim Tae-tae

Seoul Criminal Court Decision 83No1667 delivered on June 26, 1984

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

1. We examine the Defendant’s defense counsel’s grounds of appeal.

(1) 원심판결 이유에 의하면 원심은 피고인이 포장용 테-프 등 제조판매업체인 공소외 1 업체를 경영하는 공소외 2(피고인 생질)에게 도합 금 14,400,000원을 투자하였으나 공소외 2가 공소외 1 업체의 물품대금 일부를 유용하여 영업부장인 공소외 3, 4와 공동으로 경남 창원에서 카바레를 인수 경영하는 과정에서 공소외 1 업체가 부실하게 되고 채권자들로부터 공소외 1 업체의 경영진이 고소를 당하게 되는 사태에 이르게 되자, 피고인의 투자금 회수를 염려한 나머지 공소외 4로부터 공소외 3과 공모하여 공소외 1 업체의 물품대금을 횡령하였다는 자인서를 받아낸 뒤 이를 근거로 공소외 4로부터 돈을 갈취할 것을 결의하고, ① 1982.9.5. 11:00경 피고인이 건물관리인으로 있는 대호건설주식회사 3층 사무실에서 공소외 4에게 “지금 대공분실장의 특별지시로 너희들 동업체에 대하여 조사를 하고 있으니 꼼짝말고 앉아 있어라, 나는 김천일대에서 쪽제비로 이름이 나 있어 모르는 사람이 없는데 오늘 맛 좀 보여 주겠다, 말을 듣지 않으면 대공분실 지하실에 데리고 가서 거꾸로 매달아 오줌물을 먹이고 죽여버려도 쥐도 새도 모른다”고 말하는등 동인을 협박하고, 같은 날 19:30경 그곳에서 공소외 4에게 공소외 3과 함께 공소외 1 업체의 물품대금 70,000,000원을 횡령하였다는 내용의 자인서를 작성할 것을 요구하다가 공소외 4가 피고인의 마음에 맞게 쓰지 않는다는 이유로 공소외 4의 얼굴을 5,6회 구타하고 발로 동인의 전신을 여러 번 찬뒤 마치 대공분실장에게 인계하여 신체에 위해를 가할듯한 태도를 취하면서 공소외 4에게 자인서작성을 강요하여 동인으로 하여금 “ 공소외 2, 3, 4 등이 창원캬바레를 운영하기 위하여 테-프회사를 상대로 금 70,000,000원 정도의 물건을 착복하였다”는 요지의 자인서를 작성하게 하고, ②전항에 계속하여 공소외 4가 이 겁을 먹고 있는 상태를 이용하여 돈을 갈취할 목적으로 “대공분실장에게 보고를 하였더니 받을 수 있는 돈은 받으라고 한다. 돈 50,000,000원을 내어 놓되 우선 30,000,000원을 준비하여 오라”고 협박하여 공소외 4로부터 돈 20,000,000원을 주겠다는 승낙을 받았으나 동인이 위 돈을 교부하지 아니하므로써 그 뜻을 이루지 못하고 미수에 그친 것이라는 사실을 인정한 다음, 위 ①항의 폭력에 의한 권리행사 방해의 점에 대하여 폭력행위등처벌에관한법률 제2조 제2항 , 제1항 , 형법 제324조 를, 위 ②항의 공갈미수의 점에 대하여 폭력행위등처벌에관한법률 제6조 , 제2조 , 제2항 , 제1항 , 형법 제350조 제1항 을 적용하고 위 두 죄를 형법 제37조 전단 의 경합범으로 처단하였다.

(2) Grounds of appeal Nos. 1, 4, 5, and 8

Examining the evidence admitted by the court below in light of the records, there is no violation of the rules of evidence, such as the theory of lawsuit, in the process of fact-finding.

The author argues that it is contradictory to the empirical rule, such as the assertion of arguments, that the defendant's instruction given by the chief of the Ministry of Public Sector and that his self-defense recognized that he simultaneously claimed violence and breach of trust cannot be deemed as contradictory to the empirical rule, and that the above method of intimidation cannot be a way to cause fear to the people, or it is merely a legitimate exercise of the right, is nothing more than the German theory, and there is no argument that there is a defect in the reasoning at the time of the original adjudication.

(3) Grounds of appeal Nos. 2, 3, and 6

As seen above, the judgment of the court below adopted a resolution to obtain money from the victim non-indicted 4 after receiving a written statement from the victim non-indicted 4 as a person of embezzlement of the price of goods, and held that the court below recognized that the defendant committed each crime of obstruction of the exercise of rights by violence, and attempted attempts to commit a crime of obstruction of official duties, and held that the above two crimes are concurrent crimes

However, if the principal criminal intent of the defendant was to take money from the victim, the defendant shall be deemed to have continued to take advantage of it after preparing a single person's statement under the criminal intent of a single attack. Thus, the above act of the defendant shall be deemed to constitute only the crime of attempted crimes of attempted crimes of imprisonment, including the above act. However, although the defendant first received the letter from the person's person's person's person's person's person's person, if the defendant's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person'

The judgment on the grounds of appeal Nos. 3 and 6 is omitted.

(4) Ground of appeal No. 7

Even if a person has the right to receive property or to acquire property benefits, if he/she receives property or acquires property benefits by using means of violence and intimidation to the extent generally acceptable by social norms, it shall not be deemed a legitimate exercise of the right, and thus, it shall be deemed that the crime of conflict is constituted.

Even though the defendant had a claim against the victim non-indicted 4, such as the head of the family theory, if the defendant committed a cruel act such as assault, intimidation, etc. against the victim as the time of the original judgment with the consent to the payment of the money, it can be recognized that the crime of attempted assault is established. Therefore, the judgment below which recognized the crime of attempted assault is justified in the misapprehension of the rules of evidence and the misapprehension of the legal principle

2. We examine the Prosecutor’s grounds of appeal.

(1) According to the reasoning of the judgment below, among the facts charged in this case against the defendant, the court below found the defendant guilty on the following grounds: from Sep. 11, 1982 to Sep. 00, 1982, the defendant committed a harsh act against the non-indicted 4, such as assaulting and intimidation against the non-indicted 4 from Sep. 11, 1982 to take money from the above defendant's office, and inducing the Dong to keep the Dong up to 02:00 on the next day, and inducing the Dong to use the proceeds of the non-indicted 1's goods as Non-indicted 3, as the non-indicted 3, and not using the proceeds in accordance with the defendant's mind.

In other words, even if Non-Indicted 3, Non-Indicted 4's statements and statements made by Non-Indicted 4 in the court below and the court below, which correspond to the facts charged, are hard to find the defendant's office in order to clarify the situation of Non-Indicted 3 and Non-Indicted 4's own testimony, and the above office's non-Indicted 4 did not have any special correction device, and the defendant could not easily open the office's office's statements from Non-Indicted 4 to Non-Indicted 5's office's non-Indicted 4's office's non-Indicted 6 office's non-Indicted 4's non-Indicted 6 office's non-Indicted 4 office's non-Indicted 4 office's non-Indicted 6 office's non-Indicted 4 office's non-Indicted 4 office's non-Indicted 6 office's non-Indicted 4 office's non-Indicted 4 office's non-Indicted 6 office's non-Indicted 3 office's non-Indicted 4 office's non-indicted.

(2) However, in the crime of confinement stipulated in Article 276(1) of the Criminal Act, the act of confinement refers not only to a physical disability but also to a case where an act of restricting physical freedom is committed in order to prevent a person from leaving a certain place, and its method includes not only the use of physical disability but also to a case where a person cannot get out of fear as an intangible means.

If the fear caused by the Defendant’s intimidation and assault, as recognized by the court below, did not appear out of the judgment place, the victim’s first place is voluntary, and even if there was no physical obstacle to the entry of the correction device, etc. at the above place, confinement is established. The court below rejected the above victim and Nonindicted 3’s statements due to fear caused by the Defendant’s assault and intimidation, and rejected them. However, if the above victim was in a state where he could leave the above place, then he did not leave the new wall up to 02:0 on the following day as of the original trial, and remaining at that place by the Defendant’s assault and assault. The victim did not obtain a promise to pay the debt approval amount of KRW 20,000,000 from the Defendant, which was written by intimidation. Thus, the judgment of the court below cannot be viewed as evidence judgment against the above rule of experience.

In addition, the court below stated that the wife of the person who received the victim's telephone contact at 13:00 on the day of the non-existence of confinement was in contact with the above victim and his family members, such as finding in the above place and giving the above victim with the above victim, and that the defendant was in contact with the above victim and his family members, and that there was about one hour of the above place and about 18:30 hours of the above place since it is viewed to the Gangwon Police Station in the day, and that the defendant was in contact with the above victim and the above non-indicted 3, the above victim and the non-indicted 3 did not go back to the same place. However, in the above victim and the above non-indicted 3's statement, it is difficult to deny the detention by taking the above contact with the family members or the defendant's appearance from the next 18:30 days to 02:00, which the defendant returned again.

(3) Ultimately, the judgment of the court below is erroneous in finding the value of evidence against the rules of evidence against the rules of evidence, and it is justified to discuss this issue.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Il-young (Presiding Justice)