Defendant 1 and one other

Defendants

United States of America

Attorney Kim Jong-woo in charge of the spring of Law Firm

Seoul Central District Court Decision 2009Gohap277 Decided July 14, 2009

The judgment of the court below is reversed.

Defendants shall be punished by imprisonment for eight months.

However, the execution of each of the above punishment against the Defendants shall be suspended for two years from the date this judgment became final and conclusive.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) The Defendants, at the time of committing the instant crime, did not cause any contingency by inducing the victim Nonindicted 2, such as the victim Nonindicted 2’s remarks, and did not commit assault or intimidation for the purpose of retaliation. However, the lower court erred by misapprehending the fact that the victim and Nonindicted 3’s statements were made, which were not consistent and are insufficient, thereby making a wrong judgment.

2) Although the Defendants conspired to commit the instant crime, the lower court erred by misapprehending the legal doctrine as to the co-principal, thereby making a false judgment.

3) Defendant 1’s statement is not against the victim, but against the victim, at the same place as at the time of the instant crime, to be made to the members of △△△ Dol National Camp, and even though the company, other than the victim, is the object of the crime, the lower court erred by misapprehending the legal doctrine as to the establishment of the crime of intimidation based on the erroneous fact-finding.

4) Although Defendant 2 did not assault the victim, the lower court erred by misapprehending the legal doctrine as to the establishment of the crime of assault based on the erroneous fact-finding.

B. Unreasonable sentencing

The punishment sentenced by the court below against the defendants (eight months of imprisonment) is too unreasonable.

2. Determination:

A. misunderstanding of facts or misapprehension of legal principles

1) Whether the Defendants, at the time of committing the instant crime, made a statement and conduct as to the facts constituting the crime in the judgment below

The court below duly adopted and examined the following circumstances, namely, it is consistent with Non-Indicted 2's statements from the investigative agency to the court of this case, while the defendants' statements and statements in the court of this case are asserted in the court of original instance only when they were not consistent and are written in the suspect examination protocol, etc. At the time, Non-Indicted 3, who appeared witness at the time, unilaterally expressed that the defendants were able to take a bath or tending against the defendants, and that Non-Indicted 2 was not in a situation where Non-Indicted 2 was able to take a bath against the defendants. Defendant 2 testified to the effect that the defendant 2 was able to take a bath before the victim's seat immediately and before the defendant 1; although Defendant 2 did not witness the day between the victim and the defendant 1, it is hard to believe that it was done with the victim's and the defense counsel's behavior at the time of this case's oral testimony and the defendant 2's defense counsel's oral statement to the extent that the defendant 2 had no other reasons for the defendant 2's oral statement.

2) Details of the crime of intimidation

The court below held that intimidation does not necessarily require harm to the other party himself/herself, and even harm to the third party closely related to him/her. Defendant 1 had already made a statement to the effect that it would be free from harm to the other party, and Defendant 1 had already caused business losses due to the telephone, false order, posting the real name and contact number of employees of Nonindicted Co. 1 corporation on the Internet, and the interruption of web service through attack on the Internet site. When such acts continue, it was sufficiently recognizable that employees of Nonindicted Co. 1 corporation may directly, indirectly, and indirectly inflict mental or material harm on the victim, and that the victim had already known that he/she is an employee of Nonindicted Co. 1 corporation, and again made a statement to the effect that he/she would open the pressure to stop advertising so that the victim might appear in the nearest distance, and that he/she made a repeated statement that causes fear, such as the victim's intimidation, and that there was no error in the misapprehension of legal principles as to the contents of intimidation or defense counsel's defense counsel's assertion that the above acts constituted i.

3) The nature of the crime of assault

The court below held that the act of putting the hand or the goods, as the victim may take a bath near the victim, constitutes an assault against the victim as an exercise of force (see, e.g., Supreme Court Decision 89Do1406, Feb. 13, 1990) even though it was not directly contacted with the victim's body, and Defendant 2's act of taking the hand or the blue blue with Non-Indicted 2's part in the crime of assault constitutes the exercise of force as stated in the crime of assault. The above judgment of the court below is just, and it cannot be said that there were errors in misconception of facts or misapprehension of legal principles as argued by the defendants and their defense counsel, and this part of the defendants and their defense counsel's assertion is without merit [In addition, the crime of intimidation is a crime of assault which is protected by the law of protection of the law as the protected interest of the law, and is merely an assault that is protected by the law of protection of the law as to the physical nature of the victim, and there is no awareness of each of the crime of intimidation and the defendant 2's co-processing 17.

4) Acknowledgement of retaliation purposes

In light of the fact that Defendant 1, who was aware that the victim was present as a witness and was in the atmosphere outside of the court after oath, voluntarily made statements to the effect that he would repeat the pressure to stop advertising while he did not apply in the prosecutor's office, and that Defendant 2 and the victim's face were induced, and assaulted by inducing the victim to feel discomfortable or uncomfortable, etc., he did not seem to have committed the crime of this case by departing from excessive response to the expense of the Defendants, but he intentionally assault and intimidation the victim who is anticipated to be present in the criminal trial and make unfavorable statements, and thus, the purpose of retaliation is sufficiently recognized. The judgment of the court below is just, and it cannot be said that there was any error of mistake of facts or misapprehension of legal principles as argued by the Defendants and their defense counsel, and therefore, this part of the defendants and their defense counsel's assertion is without merit.

5) Whether the case constitutes a co-principal

The court below held that the co-principal under Article 30 of the Criminal Act is a crime committed jointly by two or more persons, and the intent of co-processing is a subjective element of the actor's intent of co-processing; however, the intent of co-processing is one of the parties to commit a specific criminal act, and the intent of co-processing is the awareness of co-processing in order to move one's own intent to execute it, and it is common sense with the intent of the two parties, and it does not necessarily require any mother process in advance (see Supreme Court Decision 2004Do4437, Oct. 28, 2004, etc.). The court below held that the crime of this case was committed through a series of acts, and the time and place close to the place of the crime of this case, and the violence and intimidation of the defendants, etc. of this case by the defendants and his defense counsel, and there are no errors in the misapprehension of legal principles as argued by the defendants and their defense counsel, and therefore there are no errors in the misapprehension of legal principles and defense counsel's grounds.

B. The assertion of unfair sentencing

Article 5-9 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that punishment for murder, injury, violence, arrest, confinement, threat, etc. for the purpose of retaliation against a witness shall be imposed, and that acts of obstructing a witness such as testimony and coercion of interview with a witness shall be punished, and it shall also be aimed at ensuring legitimate law enforcement through discovery of substantive truth. The crime of this case was committed by the defendants that have been adopted as a witness for the purpose of ascertaining the truth of criminal trial and have prevented the victim present at the meeting from using violence, intimidation, and free testimony, and the nature of the crime is very poor, so it shall be punished for severe punishment. However, the defendants 1 had no record of being punished for suspension of execution or heavier punishment except for the punishment imposed on the defendants due to the crime of injury, etc., and Defendant 2 had no record of being punished for a considerable period of time since the decision of the court below was made, and the defendants were detained for a considerable period of time, and the defendants' age, character and behavior, family form, etc. favorable to the defendants.

3. Conclusion

Therefore, since the defendants' grounds for appeal on unreasonable sentencing are well-grounded, under Article 364(6) of the Criminal Procedure Act, the judgment of the court below against the defendants is reversed, and the following is again decided after pleading.

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Articles 5-9 (2) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, 260 (1) and 30 of the Criminal Act (a crime for the purpose of return), 5-9 (2) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 283 (1) and 30 of the Criminal Act (a crime for the purpose of return)

1. Commercial competition;

Articles 40 and 50 of each Criminal Code / Articles 40 and 50 / [The crimes of assault and Intimidation for Retaliatory Purposes (the crimes committed by the defendants are continuous in the same opportunity with the same opportunity to the same victim at a short time, so it is reasonable to see that the crimes are regarded as one act under law and are regarded as a conceptual concurrence) of the Criminal Code.]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Code (Consideration 3 of the Criminal Code)

1. Suspension of execution;

Article 62 (1) of the Criminal Code (Concurrent Consideration of Grounds for reversal)

It is so decided as per Disposition for the above reasons.

Judges Temporary (Presiding Judge)