[1] The meaning of intimidation as a means of the crime of intimidation

[2] The case affirming the crime of extortion in a case where the two titles or members of a violent organization request the victims to deliver property by an implied method through a third party, and if the victims refuse to comply with it, they may suffer an unreasonable disadvantage, and furthermore, the victims do not receive money for a third party, which is in a difficult situation, the case affirming the crime of extortion

[1] Intimidation as a means of the crime of intimidation refers to notifying a threat of harm that is likely to be drinking to the extent that it limits the freedom of decision-making or obstructs the freedom of decision-making. The threat of harm is sufficient if it does not necessarily require the method of specification, and if it is intended to have the perception that the other party may incur any harm or harm by language or dynamics, etc., and even if not directly or indirectly, it may be indirectly made through a third party other than the person under threat. It is also a threat of harm or injury even in a case where the perpetrator demands the delivery of property or pecuniary profit by using illegal consolation duties based on his occupation, status, bad character and behavior, career, etc., and the other party’s failure to comply with the demand, and where it causes a threat of harm or injury that there may be any danger of unfair

[2] The case affirming the establishment of a crime of public conflict, in case where the two titles or members of the violence organization, which were made and invested in the film materials, requested the victims to provide property using bad character, behavior and career, etc. of organized violence through the supervision of the film, and the victims did not comply with the request, and the victims did not comply with the request, and the victims did not pay money to the victims for the purpose of supervising the film because they were the two items or members of the violence organization where they were made in their film materials, and they did not pay money to the victims for their disadvantage or for the purpose of supervising the film because they did not comply with the request

[1] Article 350 of the Criminal Code / [2] Article 350 of the Criminal Code

[1] Supreme Court Decision 2000Do4415 decided Feb. 23, 2001 (Gong2001Sang, 813) Supreme Court Decision 2003Do709 decided May 13, 2003 (Gong2003Sang, 1405)

Defendant 1 and one other

Prosecutor

Busan District Court Decision 2003No2260 delivered on February 12, 2004

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

1. Summary of the facts charged in violation of the Punishment of Violences, etc. Act

The summary of the charge of violation of the Punishment of Violence, etc. Act against the Defendants (hereinafter referred to as the "the charge in this part") is as follows: Defendant 1 and Defendant 2, who are the two titles of lives of the violence organization, jointly conspired with Defendant 1 and Defendant 2, who are the two titles of the lives of the lives of the violence organization; Defendant 2 threatened Defendant 2, who is the supervisor of Non-Indicted 2, who is the "a motion picture produced to murder Non-Indicted 1, who is the organization of the 20th century", to give money to Non-Indicted 2; and through Non-Indicted 2, who is the representative of the production company of the above motion picture and Non-Indicted 2, who is the representative of the investment company, by threatening Non-Indicted 2, who is a representative of the above motion picture production company, received KRW 520,000,000 won

2. The judgment of the court below

The court below maintained the first instance court's decision that acquitted Non-Indicted 2 of the facts charged on the ground that there is no other evidence to acknowledge the facts charged. The court below affirmed the first instance court's decision that acquitted Non-Indicted 2 of this part of the facts charged on the grounds that it is difficult to believe that the credibility is not reliable as follows, and that there is no other evidence to acknowledge the facts charged.

A. First of all, as to Non-Indicted 2's prosecutor's statement, Non-Indicted 2's statement was made in the first interrogation protocol of the prosecution, which made Non-Indicted 2's actual case of murdered Non-Indicted 1, but it was expected that Defendant 2 should receive an amount of KRW 100 million or KRW 15% of the proceeds of promotion from Non-Indicted 2's success, and it was difficult for the Defendants to receive money from Non-Indicted 2 to receive money from Non-Indicted 1's prosecutor's office or to receive money from Non-Indicted 2's prosecutor's non-Indicted 2's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 3's non-indicted 3's non-indicted 1's non-indicted 3's non-indicted witness's statement and to receive money from the victim's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 2's statement.

나. 다음으로, 피해자 1은 검찰에서 공소외 2가 피고인들로부터 돈을 달라는 협박을 받아 자다가도 몇 번씩 일어나고 머리털이 쭈뼛쭈뼛 선다며 5억 원으로 해결해 보겠다고 하여서 2억 원을 준비하여 주었고, 공소외 2가 피고인들을 만나고 나서 자신에게 요구하는 과정에서 보인 뉘앙스를 보면 도저히 돈을 주지 않을 수가 없었다는 취지로 진술하였고, 제1심법정에서도 같은 취지로 진술하고 있으나, 위에서 본 바와 같이 공소외 2가 제1심 및 원심법정에서 자신이 피고인들로부터 협박을 당하고 있다고 피해자 1에게 말한 사실이 없다고 진술하고 있는데다가, 가사 공소외 2가 피해자 1 등에게 협박을 당하고 있다는 말을 한 사실이 있다고 하더라도, 피고인들로부터 빨리 돈을 달라는 압박을 받고 있는 상황에서 공소외 2 자신이 협박을 당하는 곤란한 상황에 있는 것처럼 과장하였을 여지도 있어 보이고, 피해자 1이 들었다는 협박의 내용도 피고인들이 빨리 돈을 달라고 한다는 것에 불과하므로, 피해자 1의 각 진술에 의하여 공소사실을 인정하기에는 부족하다.

C. In addition, the prosecutor's statement about the victim 2 is insufficient to recognize the facts charged because the victim 2 made a statement that the victim 2 signed and sealed without reading the written statement at the first instance court and the court below's court below's decision that it is written differently from the actual contents of the statement, and there is a doubt as to the admissibility of evidence. Even if the admissibility of the written statement is admissible, it is merely the fact that the defendants asked the rapid payment of money like the victim

D. Meanwhile, the contents of Defendant 2 sent to Nonindicted 2 on April 24, 2001, when inducing the success of the film, and taking money without any choice in human desire, Nonindicted 2 appears to have expressed his mind that he would play a bridge role, and that he would not cause damage to Nonindicted 2. Moreover, the copy of each interview sheet with Defendant 2 is also a copy of Defendant 2, and it appears that Nonindicted 2 may not be viewed as a behavior that may be taken by a person who would take money again by intimidation, such as giving KRW 20,000 to Defendant 1, and in light of the relationship between Nonindicted 2 and Defendant 2 and Defendant 2, and the contents of the interview with Defendant 2, there is no evidence to acknowledge otherwise according to the above or each part of the facts charged, and there is no evidence to acknowledge otherwise.

3. Judgment of the Supreme Court

However, it is difficult to accept the fact-finding and judgment of the court below for the following reasons.

A. Intimidation as a means of a misunderstanding or attack refers to notifying a threat of harm that is likely to be frighten to restrict the freedom of decision-making or interfere with the freedom of decision-making. The threat of harm is sufficient if it is not necessarily required to do so by the method of specification, and if it is possible to have the other party know that it would be fright to incur any harm by language or impulse, etc., and even if not directly or indirectly, it may be indirectly made through a third party other than the fester. In addition, the perpetrator demands the delivery of property or pecuniary profit by using illegal perjury based on his occupation, status, bad character and behavior, career, etc., and if the other party fails to comply with the demand, it also becomes a threat of harm and injury (see, e.g., Supreme Court Decisions 200Do415, Feb. 23, 2001; 2003Do709, May 13, 2003).

B. Facts of recognition

The record reveals the following facts:

(1) Defendant 2 and Nonindicted 2 sent close to the elementary school’s phase between the starting site of an elementary school. However, Nonindicted 2 retired from the university and went back to the U.S. and worked as a film supervisor. While Defendant 2 was in the middle school, Defendant 2 was working as an organization of livem wave, which is a violent organization, and had been living in prison since 196, and the two were only 10 times after their graduation from an elementary school, and it was not close.

(2) Defendant 2, a member of the 20th century of the new 20th century, who was another violent organization, instigated Nonindicted Party 1 to murder at the same time in the prison as above. However, around July 8, 199, Nonindicted Party 2, at the place of Defendant 2’s interview with Defendant 2, would make the above Defendant’s crime “a film’s contents of the crime at the seat of Defendant 2,” and Defendant 2 did not agree or refer to the case related to the film entertainment.

(3) On the other hand, on March 201, 201, prior to the opening of the above film, the victim 1, the representative director of Non-Indicted 4 corporation, who was a motion picture producer of the early 2001, was aware of what kind of damage was caused even if the motion picture was produced in the form of organized violence, and the remaining Non-Indicted 2, who expressed that the degree of KRW 11 million was expressed to the wife of Defendant 2, and that Non-Indicted 2 was audited. However, although Non-Indicted 2 had already obtained his consent to the production of the motion picture, it is sufficient to think that the degree of the case is only sufficient, and there was no case or no case of both Non-Indicted 2 and the victim 1.

(4) However, on March 31, 2001, Non-Indicted 2 opened "a film name omitted)" and appeared to be successful in entertainment. Defendant 2 asserted his right along with a motion picture without any awareness, and Non-Indicted 2's success in the above film, so if Non-Indicted 2 were to collect only initial options from the victim 1 of the film producer or the victim 2 of the film investment distributor, the film producer will not be present. On the 24th of the same month, Non-Indicted 2 played a role in the middle and requested for their own share, and if the victim 1 and the victim 2 do not respond to it in order, it does not appear to be a way of "the other party to the film producer's success," and it does not appear to be a way of "the other party to the film producer's participation."

(5) Accordingly, in the middle of May 2001, Nonindicted 2 met Defendant 2, and Defendant 2 demanded Nonindicted 2 to have the degree of 10%-15% of the entertainment income at one’s own share, and the Defendant 1 met Defendant 1 and resolved all the problems to himself. Accordingly, Nonindicted 2 expressed that he could not reduce that amount by explaining the import distribution situation of the film industry.

(6) 한편, 피고인 1은 2001. 5.경 공소외 2에게 돈을 요구하기 위해 여러 차례 전화를 하였으나 공소외 2가 의도적으로 전화를 받지 아니하자, 음성메시지를 남기는 등 접촉을 시도하였고, 2001. 6. 15. 피고인 피고인 2를 면회한 자리에서 공소외 2를 지칭하며 "그 자식 그거 전화도 안하고 웃기는 놈이야. 걔에게 똑바로 하라고 얘기해. 호로자식, 단호하게 해라."라고 이야기하면서 피고인 2를 독려하기도 하였다.

(7) The victim 1 heard the opinion that the defendant 2 demanded the money from the non-indicted 2, and first agreed that he would pay a certain amount of money for the first time, but if the non-indicted 2 demanded the money, he could not pay an absolute amount. On July 23, 2001, the defendant 2 asked that the non-indicted 2 would have expressed a strong objection against the victim 1, and then asked that he would have a certain amount of money that can be actually paid to himself, and he did not think that the non-indicted 2 would want any more amount than the expected amount."

(8) After that, Nonindicted Party 2 sought the victim 1 and asked to prepare the degree of KRW 300 million. Accordingly, the victim 1 expressed the victim 2 as one’s office and talked about such circumstances, and the victim 20 million won.

(9) However, on August 201, Non-Indicted 2, 2001, sought to find the victim 1 again, and requested the victim 1 to create KRW 500 million. The victim 1 and the victim 2 would receive the remaining KRW 300 million from the victim 2, and eventually, the victim 1 and the victim 2 would pay the above money at the time of settlement of film profits. Accordingly, the victim 1 delivered KRW 20 million around November 12, 2001, KRW 30 million to the victim 2,00 won around that time, and KRW 300 million to the Defendants, respectively.

(10) At the end of November 2001, Nonindicted Party 2 prepared for cash of KRW 300 million and check of KRW 300 million and delivered cash of KRW 300 million to Defendant 1, and then delivered KRW 20,000 to Defendant 2 separately.

(11) Non-Indicted 2 was initially charged with supervision fees of KRW 50,000 in relation to the “motion picture” (a motion picture name omitted), but it was additionally received KRW 200 million from the companies that invested in the motion picture due to the success of entertainment.

다. 한편, 피해자 1은 검찰에서 공소외 2로부터 " 피고인 1이 자꾸 전화를 해서 돈을 달라고 협박을 한다. 불안하고 겁이 나서 밤에 잠을 자지 못하고 머리가 쭈뼛쭈뼛 설 정도로 협박을 당하고 있다. 세금 빼고 5억 원을 만들어 달라."는 말을 들었고, 당시 공소외 2가 말하는 분위기로 보아 곤경에 빠진 공소외 2를 위해서라도 도저히 돈을 주지 않을 수가 없어서 피해자 2에게도 그와 같은 경위를 설명하고, 함께 돈을 마련하여 건네주었다고 진술한 이래 제1심법정에서도 같은 취지로 비교적 일관되게 진술하고 있다.

On the other hand, Non-Indicted 2 stated in the prosecution that he received repeated pressure from the Defendants and received money from the victim 1, etc., but the court of the first instance and the court of the court of the court below did not reverse it and there was no fact that he was threatened by the Defendants, and there was no fact that he was threatened by the victim 1, etc., and the motion picture "(motion picture name omitted)" would first be paid the honorarium to the defendant 2 as he succeeded greatly to the show that he would receive money from the victim 1, etc., and the court below rejected Non-Indicted 2's prosecutor's statement and the victim 1's statement.

However, the victim 1's consistent statement cannot be found to have a specific rationality in the contents of the statement, and there is no reason or obligation to reduce a large amount of money to the defendants without any consideration as stated in the above acknowledged facts. If the victim 1 did not hear the statement that the non-indicted 2 is under intimidation from the defendants, it is impossible to provide a reasonable explanation as to whether he prepared a large amount of money and delivered it to the defendants through non-indicted 2, and it is supported by the victim 2 indirectly or indirectly, such as the content of the letter sent by the defendant 2 to the non-indicted 2 or the copy of the interview with the above defendant. In light of the above facts, it is determined that the victim 1's above statement is credibility.

On the other hand, in light of the relationship with Defendant 2, in particular, the possibility that Nonindicted 2’s testimony was reversed due to Nonindicted 2’s disadvantage or psychological pressure when Defendant 2, who is currently in prison, is punished additionally, cannot be ruled out. In light of the above, it is difficult to view that Nonindicted 2’s legal statement is more reliable than his prosecutor’s statement or victim’s statement, or that there is superior value of evidence.

D. Ultimately, according to the above facts, it is reasonable to view that Nonindicted 2, who was under psychological pressure due to the continuous demand from the Defendants, requested the victims to prepare money by asking them to the effect that they suffered suffering from intimidation as seen above. The victims are two items or group members of the violent organization that Defendant 2 had no obligation to pay money to Defendant 2, and if they did not comply with the demand, they would not have any disadvantage to receive money, or would not pay money for Nonindicted 2, who was in difficult situation, even if they did not receive money. It is reasonable to deem that Nonindicted 2 did not receive money more than the amount to be paid to Nonindicted 2.

In addition, even though the defendant's series of acts committed against the victims through the non-indicted 2 did not notify the victims of the contents of harm directly or explicitly, the defendant's demand for delivery of property through the use of poor personality, behavior and career, etc. of organized violences through the non-indicted 2, and caused the other party's fear of unfair disadvantage if the other party does not comply with the demand, and it is not sufficient to view it as constituting a threat of harm and injury as the constituent element of the crime of public conflict.

E. Nevertheless, the court below rendered a not guilty verdict on this part of the facts charged solely for the reasons as seen earlier. In so doing, it erred by misapprehending the rules of evidence or misleading facts, which affected the conclusion of the judgment, and the prosecutor's ground of appeal pointing this out has merit.

4. Scope of reversal

Since the part concerning the crime of obstruction of the performance of official duties and the crime of unlawful uttering of official document against Defendant 1, which was found guilty by the first instance court and maintained by the court below, is related to this part of the facts charged subject to reversal and the former part of Article 37 of the Criminal Act, the above guilty part cannot be reversed together.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jack-dam (Presiding Justice)