Defendant

Prosecutor

Efficiencies

Attorney Lee Sang-hoon

Busan District Court Decision 2009No377 Decided April 17, 2009

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

In collusion with a person in charge of the test affairs, the defendant's act of manipulating sexually and employing a new employee would interfere with the employment of new employee by deceptive means. It is improper to limit the scope of the counter-party to the act of deceptive scheme in the crime of interference with business through deceptive means to the person in charge of the relevant business. Rather, in the case of a corporation such as ○○○○ Cooperation, it is possible to form a corporate intent through a general meeting or a board of directors, etc., even in the case of a corporation. Since the need to protect the business of a corporation is much much much longer in the modern society, it is necessary to include the corporation, etc. in the counter-party to the act of deceptive means. When ○○○ Cooperation employs new employee, the executive director, the executive director, and the executive director, the non-party 3 and the non-party 4 among the visitors did not know of the results of the test, and the non-party 5 was also aware of the above operation of the test results, and thus, the defendant and the person in charge of the test affairs did not guilty the judgment.

2. Summary of the facts charged in this case

On October 2, 2007, the Defendant was elected by the special election of the head of the ○○ Suhyup Cooperative, and served as the head of the ○○ Suhyup Cooperative from October 4, 2007.

Around 09:30 on February 12, 2008, the Defendant, while working as the head of the cooperative, directed Nonindicted 6 of the inspection office, who reported the “employment of new employees for 2008” at the 3rd floor of the cooperative room of ○○○○, Seo-gu, ○○○ (hereinafter referred to as the “land number omitted), to the effect that “I will take the examination at once by his wife Nonindicted 7 and his wife Nonindicted 8, her husband, her husband, her husband, her husband, her husband, her husband, and her husband, her husband, her husband, her husband, her husband, her husband, and her husband, and her husband, her husband, and her husband, her husband, and her husband,

On March 16, 2008, the defendant received a telephone report from the above non-indicted 6 that it is difficult to pass the examination scores of the non-indicted 1 and the non-indicted 2, who is the non-indicted 8's father, from the above non-indicted 6's father at the place of the accident at around 16:34, 2008, and instructed the above non-indicted 6 to re-examine the above non-indicted 6 to "we check, check, and pass the examination."

Accordingly, Nonindicted 6 sent the Defendant’s instruction to Nonindicted 9, 10, 11, and 12, who was in charge of grading duties at the meeting room at the meeting room at the meeting room at the meeting room on the third floor of his business, and around 22:00 on the same day, Nonindicted 9, 10, 11, and 12 at the above Nonindicted 1 and 2, in accordance with the Defendant’s instruction, passed the consultation recruitment examination by having the above Nonindicted 6, 9, 10, 11, and 12 pass the consultation recruitment examination by having the above Nonindicted 6, 10, 11, and 12 pass the consultation recruitment examination by using deceptive scheme to pass the above Nonindicted 1 and Nonindicted 2 in the consultation recruitment examination.

3. The judgment of the court below

A. The lower court acknowledged the following facts based on the evidence of each judgment.

(1) On October 2, 2007, the Defendant is a person with authority to appoint employees by means of open competitive employment or limited competitive employment, who was elected by a special election for the head of the ○○ Suhyup Cooperative and served as the head of the ○○ Suhyup Cooperative from October 4, 2007.

(2) On March 16, 2008, the ○○○ Union decided to employ five children of the elementary school members, five general employees, and two certified auctioneers, respectively. On February 28, 2008, after conducting a multiple-choice test under the supervision of the planning division, the final successful candidates were determined on March 28 of the same year after conducting the multiple-choice test and undergoing the interview.

(3) Around 09:30 on February 12, 2008, the Defendant instructed the head of the inspection office, who reported on the "employment of new staff in 2008" at the 3rd floor of the cooperative room of the ○○○○○ Seo-gu, ○○○○○ (hereinafter its lot number omitted), to the effect that "Non-Indicted 6 applied for by Non-Indicted 1 and Non-Indicted 2 of the Mansan fishing Village Chairperson 7's husband, Non-Indicted 1 and Non-Indicted 8's husband and her husband and her husband and her husband and she will pass a correct examination, and he/she attempted to get his/her election, and he/she agreed to do so at that time."

(4) In the objective test that came into force on March 16, 2008, the scores of Nonindicted Party 1 and Nonindicted 2 did not reach a solar, and Nonindicted 13 reported to the effect that “Nonindicted 13 should not get too far away from the scores” to the Defendant, but the Defendant instructed the Defendant to re-examine “I will check, examine, and pass the test.”

(5) After discussing with Nonindicted 9, the chief of the ○○○ Cooperatives Planning Division, Nonindicted 13 explained the Defendant’s direction to Nonindicted 10, 11, and Nonindicted 12, who are grading staff, on behalf of Nonindicted 9, Nonindicted 11, 12, and 10, confirmed the answer sheet (the answer sheet) of Nonindicted 2 and 1, and confirmed Nonindicted 2’s written examination score of Nonindicted 28, and Nonindicted 1’s written examination score of Nonindicted 46, and included them in visitors.

(6) Around 23:00 on March 16, 2008, Nonindicted 10 and Nonindicted 11 re-written the answer sheet of each Nonindicted 1 and Nonindicted 2 from the meeting room near ○○○○, to the extent of 50 points, and received a letter of confirmation from the chief of the general secretary-general, who is the supervisor in charge of the intrusion test and grading on the following day.

(7) On March 25, 2008, after the interview, the Defendant instructed two children of the union members and three general employees to be additionally employed. Accordingly, the children of the union members, including Nonindicted 1 and Nonindicted 2, who passed the first test were fully passed through the interview.

B. In light of the above facts established, the court below held that the planning director, Nonindicted 9, Nonindicted 11, and Nonindicted 12, who is the person in charge of the examination for the employment of new staff members of the ○○○○○○○○○○○○○ Consultation, and the planning director and proxy, who are the person in charge of the examination for the employment of new staff, passed the examination for the employment of the ○○○○○○○○○○ Cooperative by replacing Nonindicted 10 and Nonindicted 2’s answers to Nonindicted 1 and Nonindicted 2, are merely the result according to the Defendant’s illegal instructions through Nonindicted 6, and the Defendant’s act did not result in the mistake, mistake, or mistake of the person in charge of the above examination affairs or the site for the above illegal acts through the Defendant’s recruitment or understanding, and on the premise that the above examination officer cannot be deemed to have caused mistake, mistake, or the site for the above new staff member of the ○○○○○○○ Cooperative, the Defendant’s test officer cannot be deemed to have caused the above fraudulent act by fraudulent means or fraudulent act.

4. Judgment of the court below

First of all, the object of the act in the crime of interference with business is another person's business, and the other person's business refers to a natural person other than an offender, a legal entity, and an unincorporated organization (see Supreme Court Decision 2005Do6404, Dec. 27, 2007, etc.). Thus, it is reasonable to deem that the new employee's business of ○○ Suhyup Cooperatives (hereinafter "the cooperative of this case") constitutes the business of the association of this case, which is a juristic person, even though the defendant was in the position to exercise the authority to employ the new employee of the association of this case as the head of the association of this case, it is merely the defendant's execution of the business of the association of this case as an organization of the association of this case, which

Next, in relation to the scope of the other party to the act of deceptive scheme, deceptive scheme means the use of the deceptive scheme by causing mistake, dismissal, or land to the other party in order to achieve the purpose of the act of deceptive scheme. (1) In principle, intellectual phenomena such as mistake, exploitation, or site caused by deceptive scheme are the result of natural person's own intellectual activities; (2) as legal personality chain corporations are engaged in actual activities through a natural person's agency (director, auditor, etc.), interference with the business of a corporation by deceptive scheme is inevitable due to deceptive scheme's deceptive act against natural person in charge of the pertinent business; and (3) just prior to the necessity of protecting business, including the scope of the other party to the act of deceptive scheme in the crime of interference with business by excessively expanding the scope of deceptive act function as constituent element element element in the crime of interference with business and thus it is difficult to view that not only the person in charge of deceptive scheme but also the other party to the act of deceptive scheme is included in the crime of interference with business. Thus, the defendant and new employees in this case cannot be seen as being aware of deceptive scheme.

Finally, with regard to whether the Defendant and the Defendant’s test personnel in charge of the instant test operation would interfere with the internal approval or interview of some visitors who did not know such circumstances by performing the instant test operation, the following circumstances are shown in the records: ① the approval of Nonindicted 3 and 4 in the process of internal decision-making with respect to the recruitment of new employees of the instant association are subordinate to the above new personnel recruitment service; and even if it is a separate task, it cannot be deemed that Nonindicted 3 et al. interfered with the approval of Nonindicted 3 et al., an assistant through the instant test operation in the position of an assistant to the Defendant; ② although the interview was conducted for the applicants who passed the written test in the recruitment of new employees, there is no procedure for confirming the scores of the written test or re-verification the written examination evaluation in the process of the interview; ③ In particular, Nonindicted 1 and 2’s internal interview with the Defendant’s general members who participated in the examination operation, and thus, there is no special reason to view only the applicants who participated in the examination or re-verification of the written examination as an internal interview with the Defendant’s.

In the end, the court below's determination of guilty of the facts charged in this case is just and acceptable, and there is no error of law by misunderstanding legal principles as alleged by the prosecutor in the judgment below, which affected the conclusion of the judgment.

5. Conclusion

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

Judges Park fixed-chul (Presiding Judge)