Defendant

Defendant

Enzyme Kim

Daegu Branch of the Korea Legal Aid Corporation, public-service advocates Kim Jap

Daegu District Court Decision 2007Gohap4085 Decided April 15, 2008

The judgment of the court below is reversed.

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.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. Error of mistake

(1) In light of the fact that Nonindicted 1 purchased the instant land from Nonindicted 3, who is not a former titleholder (Nonindicted 2) on the registry, and that the market price of the surrounding land and the purchase price of the instant land do not fully coincide with that of the instant land, Nonindicted 1 cannot be deemed as the owner of the instant land.

(2) Although there is a fact that the Defendant paid franc in the instant land for the purpose of forming a farmer, the Defendant did not commit any act leading up to Nonindicted 4 and 5’s failure to commit any act.

(3) Even if the above act was committed, it would interfere with the cultivation business of Nonindicted 4, etc., not interfere with the business of Nonindicted 1, who is not the cultivator of the instant land.

B. Legal principles

In relation to the crime of interference with business, a threat of force should be recognized to the minimum extent that the other party is able to suppress the other party, and it should be seen that the other party was able to force, and the other party was able to feel fear of fear of fear. Since the Defendant, without any reason, transferred the instant land to the instant land, the said act cannot be deemed as one of the types of interference with business.

C. Nevertheless, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

2. Determination

A. Ex officio determination

In the first instance trial, the prosecutor filed an application for changes in the indictment with respect to the defendant as stated in the following criminal facts, and since this court permitted this, the judgment of the court below was no longer maintained as it is.

B. Judgment on the defendant's assertion

However, even if there is a ground for ex officio reversal, the argument of (1), (2) and the argument of misunderstanding of legal principles among the above assertion of misunderstanding of facts is still subject to the judgment of this court, and this will be examined.

(1) Determination of misunderstanding of facts

Comprehensively taking account of the evidence duly examined and adopted by the court below, it can be sufficiently recognized that the defendant, as shown in the judgment of the court below, destroyed by the victim non-indicted 4 and 5, who were cultivated on the land of this case with the permission of the victim non-indicted 1, who is the landowner, using the agricultural machinery, and thereby interfered with the cultivation of the crops of non-indicted 4 and 5 by planting other crops after the payment of the franc, so the above argument by the defendant is without merit.

(2) Judgment on the misapprehension of legal principles

The term "comfort force" in the crime of interference with business refers to any force capable of suppressing and mixing a person's free will, regardless of whether it is tangible or intangible, and it includes not only assault and intimidation, but also social, economic, political status and pressure by force, etc. In reality, it does not require the victim's free will. The determination of whether it constitutes force should be made objectively by taking into account all the circumstances, such as the date and place of crime, motive, purpose, number of offenders, capacity, form of force, type of duty, type of duty, etc. (see, e.g., Supreme Court Decisions 2003Do504, Mar. 25, 2005; 2007Do2178, Jun. 14, 2007).

In this case, the defendant, as stated in the judgment of the court below, laid down crops cultivated by the victim non-indicted 4 and 5, using a farming machine, and cutting down crops after paying a scam, thereby preventing the above non-indicted 4 and 5 from cultivating crops on the land of this case, constitutes an act that interferes with the above non-indicted 4 and 5's cultivation business. Thus, the defendant's above assertion is without merit.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act, since there is a ground for ex officio reversal as seen above, and the judgment below is reversed and it is again decided as follows.

The facts constituting the crime in the judgment of the court below are stated in the corresponding column of the court below, except that the defendant changed the facts constituting the crime in the judgment of the court below to "on March 20, 2007, the defendant interfered with the business of using land and cultivating crops on the ground of the above victims by force, by means of using farming machines, etc., after paying an objection, as stated in the corresponding column of the judgment of the court below, on the ground that the defendant changed to "on the grounds that he had a summary of the area of Gandong-gun, Gandong-gun, Gandong-gun (number 1, 2 omitted), the dry field 1,900 square meters, the owner of the above land, the non-indicted 1 and the ownership dispute continue to exist. The victim non-indicted 4 and 5 leased the above land from the above non-indicted 1 and the crops cultivated on the ground.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 314(1) of the Criminal Act (Selection of Fine)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Kim Sung (Presiding Judge)

1) In accordance with the Act on Special Measures for the Registration, etc. of Transfer of Real Estate Ownership on October 20, 2006 (amended by Act No. 7500 of May 26, 2005), Nonindicted 1 completed the registration of ownership transfer in the name of Nonindicted 1 on the ground of sale as of March 15, 191. It is presumed that Nonindicted 1 is a lawful owner of the instant land, and even if the litigation for the registration of cancellation of ownership transfer in the name of Nonindicted 1 is pending, the presumption of ownership is not destroyed solely for such reason.