[1] Requirements for establishing crime of interference with business by fraudulent means

[2] In a case where a person in charge of the written examination marking duty allows the applicant Gap and Eul to pass the written examination and apply for the interview in accordance with the direction of the defendant, who is the head of the association, the case holding that the interview duty of the interview members who cannot be deemed to have been recruited or understood in the above act of score manipulation was hindered

[1] In the crime of interference with business through deceptive means that an actor causes mistake, mistake, or land to be used by the other party in order to achieve the purpose of the act, and the establishment of the crime of interference with business is sufficient if the result of interference with business is not required to actually occur, and if the risk of causing interference with business arises, not by itself, but by the crime of interference with business even if the propriety or fairness of the business is hindered.

[2] In a case where Gap and Eul who applied for the employment of new employees of fisheries cooperatives obtained points less than passing the written examination, and the persons in charge of grading duties could pass the written examination through the written examination according to the defendant's instruction, the case holding that the court below erred in the misapprehension of legal principles as to the crime of interference with business by deceptive means, although some visitations who cannot be seen as participating in the above act of score manipulation and did not participate in the above act of score manipulation, were deemed to interfere with the interview as a new employee of the association, and thus, the judgment below which acquitted the defendant otherwise.

[1] Article 314(1) of the Criminal Act / [2] Articles 31(1) and 314(1) of the Criminal Act

[1] [2] Supreme Court Decision 2006Do1721 Decided January 17, 2008 (Gong2008Sang, 257) Supreme Court Decision 2009Do4772 Decided September 10, 2009 / [2] Supreme Court Decision 2005Do6404 Decided December 27, 2007 (Gong2008Sang, 167)

Defendant

Prosecutor

Attorney Lee Sang-hoon

Busan District Court Decision 2009No1440 Decided August 13, 2009

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

We examine the grounds of appeal.

1. The court below found that the defendant and the non-indicted 1 and the non-indicted 2 were successful in the employment examination by manipulating the points by newly preparing the written examination answers by the non-indicted 1 and the non-indicted 2, who participated in the written examination marking at the direction of the defendant, the head of the union (hereinafter "the union of this case") in relation to the employment of new employees in 2008, as long as the defendant and the non-indicted 1 and the non-indicted 2 were recruited or understood on the above score manipulation (hereinafter "the above score manipulation"), it cannot be deemed that the person in charge of the grading work of this case and the union of this case were through deceptive scheme, and thus, the defendant and the non-indicted 1 and the non-indicted 2 were not aware of the above score manipulation (hereinafter "the above score manipulation"), and thus, the court below rejected the judgment of the court below on the non-indicted 1 and the non-indicted 2's appeal only for the reasons that the plaintiff did not have any knowledge of the above score manipulation or the interview with the members.

2. However, we cannot accept the judgment of the court below for the following reasons.

In relation to the crime of interference with business by deceptive means, a deceptive scheme means that an offender misleads, causes a misunderstanding, dismissal, or land to the other party to achieve the purpose of the act, and the establishment of the crime of interference with business is sufficient if the result of the interference with business is not required to actually occur, and if the risk of causing the interference with business arises, not in itself, but in cases where the propriety or fairness of the business is interfered with (see Supreme Court Decision 2006Do1721, Jan. 17, 2008, etc.)

According to the reasoning of the judgment below, when non-indicted 1 and non-indicted 2 who applied for the employment of new staff of the union of this case received points that fall short of the passing of the written examination, the person in charge of the grading work of this case, according to the defendant's instruction, can apply for the interview for which non-indicted 1 and non-indicted 2 passed the written examination through the manipulation of the points in this case, and if he can apply for the interview for the interview in accordance with the manipulation of points in this case, non-indicted 1 and non-indicted 2 who are not entitled to apply for the interview, unless there are special circumstances such as the interview commissioner's collusion or understanding about the manipulation of points in this case, the act of score manipulation in this case constitutes a deceptive scheme which causes misconception, misconception, or land about the legitimate qualification of the applicant for the interview, and the interview commissioner's collusion or understanding about the manipulation of points in this case is detrimental to the appropriateness or fairness of the interview work conducted by the interview commissioner.

In addition, the interview duty is a passive nature that only leads to the final passing of the interview, and even if it is formally conducted, it shall not be deemed a business that is not worth protecting the relationship with the union of this case. In addition, the interview member, due to the act of score manipulation in this case, has an interview against a disqualified applicant and is unable to interview a qualified applicant corresponding thereto, thereby impairing the appropriateness or fairness of the interview duty. Such result results are generated regardless of whether the interview duty was conducted passive or formal, and therefore, there is no interference with the interview duty.

Therefore, in this case where there is no evidence to deem that some visitations recruited or understood with respect to the act of score manipulation in the records, the interview duty performed by them as a new employee of the instant association shall be deemed to have been hindered by the act of score manipulation in the instant case.

Nevertheless, the court below affirmed the judgment of the court of first instance that acquitted the charged facts of this case on the ground that there was no interference with the above business. Thus, the court below erred by misapprehending the legal principles on the crime of interference with business by deceptive means, thereby affecting the conclusion of the judgment. The ground of

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)