2015No155 Gong155 Macion

○○ Kim (1965 Employment), Company Board

Defendant

Song-type (prosecution) and Park Jong-hee (public trial)

Attorney Yellow Sung-sung (Korean)

Jeju District Court Decision 2014Ra1746 Decided March 27, 2015

October 8, 2015

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Legal principles

Although the defendant's act does not constitute a threat of harm to the extent that it could interfere with the victim's freedom of decision-making, the court below erred in the misapprehension of legal principles.

B. Unreasonable sentencing

Even if guilty, the court below's punishment (4 million won of fine) is too unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles

Intimidation as a means of the crime of threat refers to the threat of harm and injury that is likely to be hot enough to restrict the freedom of decision-making or interfere with the freedom of decision-making. A threat of harm and injury is sufficient if it does not necessarily require the method of specification and has the other party recognize that it would cause harm and injury to the other party by language or dynamic. Even if such a threat of harm and injury is used as a means of realizing legitimate rights, if the means and method of realizing the right exceed the permissible extent and permissible by social norms even if it is used as a means of realizing legitimate rights, it shall be deemed that the crime of threat was commenced. Whether certain acts exceed the permissible extent and permissible by social norms should be determined by comprehensively taking into account the subjective and objective aspects of the act, namely, the purpose and chosen means (see, e.g., Supreme Court Decision 2013Do6809, Sept. 13, 2013).

As found by the evidence duly adopted and examined by the court below, the defendant's act constitutes a threat of harm and injury to the extent of hindering the victim's freedom of decision making in excess of the extent permitted by social norms, comprehensively taking account of the following: ① the defendant's act was repeated by posting a banner three times each time after the person puts a banner, ② the victim's act was the defendant's act to file an application for provisional injunction against obstruction of business operation with this court; ③ the phrases on the banner are the defendant's act; ③ the phrase on the banner is not accepted. The ○○ resident's act is an expression that can be aggressively and aggressively, as it is very indecently, that it is difficult to view that the defendant had a legitimate right to demand the victim to pay the village development fund even if the defendant had resided in a village for a long period of time; and ④ The defendant's act constitutes a threat of harm and injury to the extent that it substantially interferes with the victim's freedom of decision making.

Therefore, the judgment of the court below which found the defendant guilty of the attempted crime against the defendant is just and there is no violation of law by misunderstanding legal principles as argued by the defendant.

B. Determination on the assertion of unfair sentencing

The fact that the defendant has no particular criminal record and most of the victim's sales affairs are finished is favorable to the defendant.

However, considering the contents and posting period of banner, the speed of expression, the Defendant’s act appears to have damaged the overall image of the relevant village, and other circumstances, including the Defendant’s environment, the background and result of the instant crime, the circumstances after the instant crime, etc., and the conditions of sentencing as shown in the pleadings, it cannot be deemed unfair since the sentence imposed by the lower court is unreasonable. Therefore, the Defendant’s above assertion is groundless.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The judge of the presiding judge shall be assistant

Judges Yellow U.S.

Judges Kim Gon-han