[1] The meaning of "defensive force" among the elements for the crime of interference with business under Article 314 (1) of the Criminal Code

[2] The meaning of "computer information processing unit, such as computer," "damage and damage," "inform false information or unlawful order," and "other methods," among the elements for the crime of interference with business through a computer, etc. under Article 314 (2) of the Criminal

[3] In a case where the defendant, the president of a housing reconstruction association, was prosecuted for interfering with the business of the association by setting a password on the computer in the association office to interfere with his audit activities, and separating and keeping the hard disks, the case holding that the court below erred by misapprehending the legal principle as to interference with business under Article 314 (1) of the Criminal Act, on the ground that the act of interference with the information processing of the association by the above method constitutes interference with business, such as computer, etc. under Article 314 (2) of the Criminal Act

[4] The contents of the “Objection” necessary to establish the crime of interference with business

[1] Article 314(1) of the Criminal Act / [2] Article 314(2) of the Criminal Act / [3] Article 314(1) and (2) of the Criminal Act / [4] Articles 13, 314(1) and (2) of the Criminal Act

[1] Supreme Court Decision 2009Do5732 Decided September 10, 2009 (Gong2009Ha, 1722), Supreme Court Decision 2009Do5698 Decided October 13, 201 / [2] Supreme Court Decision 2002Do631 Decided July 9, 2004 (Gong2010Ha, 2030) Decided September 30, 201 / [4] Supreme Court Decision 91Do3044 Decided April 10, 192 (Gong192, 1639) Supreme Court Decision 2008Do9410 Decided January 15, 2009

Defendant

Defendant

Attorney Lee Won-won

Changwon District Court Decision 2010No2796 decided June 10, 2011

The appeal is dismissed. The part of the judgment below regarding occupational embezzlement and occupational breach of trust is reversed, and the prosecutor's appeal on this part is dismissed.

The grounds of appeal are examined.

1. On the first ground for appeal

A. The crime of interference with business under Article 314(1) of the Criminal Act is established when a person interferes with another’s business by deceptive means or by force. The term “defensive force” includes not only assault, intimidation, but also social, economic, political status and right pressure, etc. as all tangible and intangible forces capable of suppressing and mixing a person’s free will, and such force includes acts of making certain physical conditions and making it impossible or considerably difficult for a person to perform his/her duties.

Meanwhile, the crime of interference with business by interference with business by means of a computer, etc. under Article 314(2) of the Criminal Act is established when a person interferes with another’s business by destroying an information processing device, such as a computer, or a special media record, such as an electronic record, or by inputting a false information or improper order, or by causing trouble to the information processing device by other means. Here, “information processing device, such as a computer,” includes both hardware and software as an electronic device capable of automatically calculating or data processing (see Supreme Court Decision 2002Do631, Jul. 9, 2004), and “damage” includes physical destruction or destruction by exercising tangible power as well as any disturbance by means of electronic records or force. “False information or improper order” includes an objectively contrary to the truth, or inputting an order different from the original purpose of operating the information processing device, and “other means” refers to all acts that directly or indirectly affect the computer’s operation as a means that interfere with the information processing of a computer.

B. In full view of the evidence of the first instance court, the lower court acknowledged the following facts: (a) Nonindicted 2, the auditor of Nonindicted 1 Union, tried to output various data prepared by the Defendant on the said computer and use them as impeachment materials for the Defendant; (b) on July 24, 2009, the board of directors of the integrated association, distribution of a resolution of impeachment, etc., led the Defendant to impeachment; and (c) the Defendant, who became aware of such fact, established a password on August 14, 2009, in order to prevent Nonindicted 2 from impeachmenting himself/herself by the auditor, on the computer in the cooperative’s office, in which Nonindicted 3 was employed; and (d) stored the hard disc separately from the computer’s office used by Nonindicted 3 in charge of the cooperative’s office; (e) the auditor attempted to use them as impeachment materials by printing out various data prepared by the Defendant on the said computer; (e) the Defendant failed to collect materials for impeachment by separating the hard disc separately; and (e) found the Defendant guilty of the crime of interference with business by setting the secret.

However, considering the facts acknowledged by the court below in light of the aforementioned legal principles, the computer and hard disks of this case constitute "information processing unit, such as a computer," under Article 314 (2) of the Criminal Act, and the act of setting a password on a computer without permission in order to interfere with the normal performance of duties by the staff in charge, rather than for performing duties, constitutes "information of false information or improper orders" under the same paragraph, and the act of separating and storing the hard disks of a computer constitutes "damage" under the same paragraph. Thus, the defendant's act of obstructing information processing by setting a password on a computer and separating and storing the hard disc constitutes interference with business, such as a computer under Article 314 (2) of the Criminal Act.

Therefore, the court below's determination that the defendant interfered with the association's business by setting up a password on the computer and separating and storing hard disks is justified. However, since the crime of Article 314 (1) of the Criminal Act and the crime of Article 314 (2) of the Criminal Act are not different from the statutory punishment, it cannot be said that the error of applying the above Acts and subordinate statutes affected the conclusion of the judgment (see Supreme Court Decision 2005Do741, Apr. 29, 2005). The judgment of the court below that the defendant interfered with the association's business by interfering with the association's business. The ground of appeal on this part is without merit.

2. On the second ground for appeal

In the establishment of the crime of interference with business, it is not necessary to actually generate a result of interference with business, and there is sufficient risk of causing interference with business (see, e.g., Supreme Court Decision 91Do3044, Apr. 10, 1992). Thus, an intentional act does not necessarily require the intention of interference with business or planned interference with business, but it is sufficient to recognize or anticipate the possibility or risk of interference with another's business due to one's own act, and its recognition or predictability is not definite, but it is so-called an intentional act (see, e.g., Supreme Court Decision 2008Do9410, Jan. 15, 2009). Further, "act which does not violate social rules" under Article 20 of the Criminal Act refers to an act which can be accepted in light of the overall spirit of legal order or social ethics or social norms at its hinterland, and whether a certain act constitutes legitimate act that does not violate social rules, and thus, it should be considered that there is a reasonable and reasonable means or balance between the act.

Examining the facts acknowledged by the court below in light of the above legal principles, the act of the defendant, the president of a cooperative, setting a password on a computer located in the partnership office in order to interfere with his/her audit activities, and separate and keep the hard disc, as stated in his/her reasoning, was deemed to have an intention to interfere with the business of information processing of the cooperative beyond preventing damage to important data, and cannot be deemed to constitute a justifiable act that does not violate the social rules.

In the same purport, the judgment of the court below which found the Defendant guilty of the facts charged of this case is just, and there is no error of law by misunderstanding legal principles as alleged in the grounds of appeal.

3. Ex officio determination

Article 364(4) of the Criminal Procedure Act provides that “The appellate court shall dismiss an appeal by judgment when it deems that the appeal has no merit.”

According to the records, among the facts charged in this case against the defendant, the prosecutor appealeded not guilty in the first instance court as to occupational embezzlement and occupational breach of trust, and the court below determined that the prosecutor's appeal as to this part is not reasonable, but did not dismiss the appeal in the order. Thus, the court below erred by violating Article 364 (4) of the Criminal Procedure Act (see Supreme Court Decision 2004Do6432, Sept. 14, 2006, etc.).

Therefore, among the judgment below, the part of occupational embezzlement and occupational breach of trust cannot be maintained as it is, and this part of the case is deemed sufficient to render judgment based on the records of trial and the evidence examined up to the original trial, so this court's judgment is to be rendered directly in accordance with Article 39

The gist of the prosecutor’s appeal against occupational embezzlement and occupational breach of trust among the facts charged in the instant case is that the court of first instance that found the Defendant not guilty solely on the ground that there was a resolution of the inaugural general meeting on the amount of wages of the president of the association with no remuneration provision for the full-time officer of the association, or that the president of the association passed a resolution of the extraordinary general meeting on the amount of wages of the president of the association, or the bonus

However, examining the reasoning of the judgment of the court of first instance in light of the records, it is just to determine that the court of first instance is not guilty of this part of the facts charged for the reasons stated in its holding, and there is no error of mistake of facts or misapprehension

4. Conclusion

Therefore, Defendant’s appeal is dismissed. Of the judgment below, the part on occupational embezzlement and occupational breach of trust is reversed ex officio and the prosecutor’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)