Defendant

Defendant

Private Armed Forces

Attorney Kim Byung-kil

Daegu District Court Decision 2005Gohap7219 Decided August 24, 2006

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

To order the defendant to pay the amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. Fact-finding and misapprehension of legal principles

Around May 30, 2003, the Defendant told Nonindicted 1’s cell phone calls to the effect that if Nonindicted 2 did not return KRW 600 million to the victim, he would report to the upper part and initiate an investigation: Provided, That it was confirmed that the Defendant received KRW 600 million from the victim for the purpose of collecting criminal intelligence as a police officer belonging to (name omitted) police station information and police station information at the time, and received KRW 600 million from the victim under the name of development expenses, as alleged by the above Nonindicted 2.

Even if the Defendant told the victim to the above purport, since the victim did not feel any fear at the time (the victim appeared as a witness in the court of original instance and stated that there was no fear from the Defendant’s above phone at the time) the Defendant’s above behavior does not constitute a threat of harm to the extent that it may cause fear to the other party in the crime of intimidation. In addition, it is reasonable to view that the above act by the Defendant is permissible by social norms as a legitimate exercise of the police officer’s legitimate authority or an act of business.

Nevertheless, the court below found the victim's statement without credibility guilty of this part of the facts charged. The court below erred in the misapprehension of legal principles as to intimidation and thereby affecting the conclusion of the judgment.

B. Violation of the Act on the Lapse of Punishment, etc. (Misunderstanding and misunderstanding of legal principles)

Around June 4, 2003 and June 12, 2003, it is true that the Defendant stated that he was a person related to the elderly military administration that he was a criminal record. However, the Defendant’s above remarks do not constitute an act of divulging the content of the materials of investigation, which is prohibited by the Act on the Lapse of Punishment, etc., in light of the following: (a) the Defendant was able to verify the content of criminal records only when he was on duty from June 5, 2003, when he was on duty until June 4, 2003; (b) the Defendant was prior to confirming the content of the materials of investigation; and (c) the Defendant did not simply indicate the specific contents of the materials of investigation, including the name of the victim and the content of punishment at the time; and (d) the Defendant stated that he was a criminal record.

Nevertheless, the court below found the defendant guilty on each part of the facts charged. The court below erred by misapprehending the legal principles on the violation of the Act on the Lapse, etc. of Punishment and by misapprehending the legal principles, which affected the conclusion of the judgment.

C. Unreasonable sentencing

Even if each of the facts charged in this case against the defendant is found guilty, in light of the motive and background leading up to each of the crimes in this case and other various sentencing conditions, the sentence of the court below (two years of suspended sentence in August) is too unreasonable.

2. Determination

(a) Basic facts;

According to the evidence duly admitted by the court below, the victim was the victim of the above non-indicted 2's non-indicted 3's non-indicted 6's non-indicted 2's non-indicted 2's non-indicted 3's non-indicted 6's non-indicted 2's non-indicted 3's non-indicted 6's non-indicted 2's non-indicted 3's non-indicted 6's non-indicted 2's non-indicted 3's non-indicted 6's non-indicted 6's non-indicted 2's non-indicted 2's non-indicted 6's non-indicted 2's non-indicted 3's non-indicted 6's non-indicted 2's non-indicted 6's non-indicted 3's non-indicted 6's non-indicted 6's non-indicted 2's non-indicted defendant's non-indicted 2's non-indicted 3's non-indicted 2's non-indicted 2's non-indicted 1000.

B. Determination on the point of intimidation (suspect 1)

(1) First, on May 30, 2003, we examine whether the Defendant told the victim to the effect that “If the Defendant did not return KRW 600 million to the above non-indicted 2, it shall be reported to the upper part and shall commence an investigation.” Accordingly, the Defendant asserted that at the time, the victim’s phone calls and confirmed the progress of the establishment of the Komex Science University and entered into a contract with the above non-indicted 2, and denied this part of the facts charged. However, the following circumstances acknowledged by the record are as follows: (a) the Defendant had already confirmed the progress of the establishment of the Komex University (No. 177 of the Investigation Records No. 1) by posting the phone to the above non-indicted 8 on the same day, and confirmed only the progress of the establishment of the above university and whether the contract with the above non-indicted 2 was concluded, it is difficult to obtain access in light of empirical rule; and (b) in light of the above basic facts, the Defendant’s assertion that the victim and the above non-indicted 2 made a statement to the victim were made public.

Therefore, in full view of the various circumstances revealed in the records and pleadings of this case, the Defendant, on May 30, 2003, did not neglect the victim’s phone call to confirm whether to enter into a contract with the above Nonindicted Party 2, but can sufficiently recognize the same purport as stated in paragraph (1) of the facts charged.

(2) Next, as to whether a defendant's statement of the above contents constitutes a crime of intimidation, and whether a crime of intimidation constitutes a justifiable act, the term "Intimidation" means an act of notifying harm for the purpose of causing fear to the other party. The contents of harm and injury so notified are sufficient to objectively feel fear as the other party taking into account various circumstances at the time of the act such as its circumstance, circumstances at the time of the act, the surrounding circumstances at the time of the act, the offender's tendency, the degree of friendship with the other party, and the mutual relation between the offender and the other party, etc., and it does not require that the other party feel fear in reality. However, in light of various circumstances such as the contents of the defendant's statement and the fact that the defendant was in the position of police officer at the time of the act of intimidation, it is reasonable to deem that the act of the defendant constitutes "Intimidation" as referred to in the crime of intimidation, and it cannot be viewed that the other party's act constitutes a legitimate act of crime of intimidation in light of the motive and circumstances of the defendant's act of information or its authority to exercise.

(3) Sub-determination

Therefore, the judgment of the court below that found the defendant guilty of this part of the facts charged is just, and the court below did not err in the misapprehension of legal principles as to the defendant's mistake and intimidation.

C. Determination on the violation of the Act on the Lapse, etc. of Punishment (affirmative 2)

(1) First, it is reasonable in light of the empirical rule to view that the defendant's aforementioned subparagraph 1-B (b) was sufficiently able to confirm the content of the reply to criminal records before the call with a person related to the military office around June 4, 2004, even though the defendant was on night duty until June 4, 2003, as alleged by him, even though he was on night duty as of June 4, 2003, when he requested criminal records against the victim on June 3, 2003. Thus, it is difficult to easily believe the change of the defendant's defense that the defendant knew of the above criminal records after June 5, 2003, and therefore, this part of the defendant's assertion is without merit.

(2) Next, in light of the purport of Article 10 of the Act on the Lapse of Punishment, etc. that intends to actively prevent leakage of criminal records by improving the method of managing a criminal record system, such as the materials of investigation cards, etc. concerning the defendant's assertion, the "disclosure of the contents of the materials of investigation cards" referred to in the above provision shall not be deemed to be limited to the act of clearly indicating the contents of the materials of investigation cards, including the name of the criminal record, the type of punishment, and the term of punishment, and it is reasonable to see that the specific person's criminal record is included as a matter of course when he/she actually obstructs his/her normal social and economic life by indicating that he/she has a criminal record to a third party. Thus, this part of the defendant's assertion is also without merit.

(3) Sub-determination

Therefore, the judgment of the court below which found the defendant guilty of this part of the charges is just, and the court below did not err by misapprehending the legal principles as alleged by the defendant.

D. As to the issue of unfair sentencing

In light of the fact that each of the crimes of this case committed by the defendant, who is a police officer, has involved in civil cases between others, threatened the victim, leaked the contents of materials of investigation cards, and is considerably poor in the nature of the crime, the defendant should be punished with strict punishment corresponding thereto.

However, in light of the following circumstances acknowledged by the record, namely, that the Defendant was working as a police officer for 20 years and was not subject to disciplinary action or punishment due to corruption, etc., there is no record of past criminal punishment; equity with criminal punishment for other crimes similar to the instant crime; Defendant’s age, character and conduct, occupation and environment; Defendant’s motive and background leading to the instant crime; circumstances before and after the instant crime; and other various circumstances that form the conditions of sentencing as shown in the instant records and arguments, the sentence of the lower court is too unreasonable.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, since the defendant's appeal pointing out the issue of unfair sentencing is well-grounded, and this decision is rendered again as follows.

The summary of facts constituting a crime and evidence admitted by a member is the same as that of the original judgment, and thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 283(1) of the Criminal Act (the point of intimidation), Article 10(1) and Article 6(2) of the Act on the Lapse, etc. of Punishment (the point of divulgence of Materials of Investigation Cards)

2. Selection of punishment;

Selection of each fine

3. Aggravation for concurrent crimes; and

Article 37 (Aggravation of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Crimes with Punishment prescribed in Violation of the Act on the Lapse, etc. of Punishment heavier Than Punishment)

4. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

5. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Justices Kim Tae-tae (Presiding Justice)