2018Do9809 A. Abuse of official authority and obstruction of exercise of rights

(b) coercion;

(c) Violation of the Subsidy Management Act;

(d) Fraud;

(e) Occupational embezzlement;

F. Disclosure of official secrets

(g) Violation of the Act on Testimony and Appraisal in the National Assembly;

1. (a)(c)(d)(a);

2. A. (f) B

Defendants and Prosecutor (Objection to Defendants)

Law Firm C (Attorney in charge of D, E, F, G, H)

(For Defendant A)

Attorney I (for the defendant B)

Seoul High Court Decision 2017No3802 Decided June 1, 2018

February 6, 2020

The conviction part of the original judgment against the Defendants is reversed, and this part of the case is remanded to the Seoul High Court.

The appeal by a public prosecutor shall be dismissed.

1. The grounds of appeal shall be determined.

A. As to the allegation in the grounds of appeal on Defendant A’s abuse of authority and obstruction of another’s exercise of rights, the lower court determined that even if Defendant A, who is not a public official, conspired with Defendant A through J, who is not a public official, in a successive manner, with Defendant A’s status K (hereinafter “K”), a co-principal of the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of another’s rights relating to support for L Group M (hereinafter “M”) may be recognized.

Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on status, accomplice, and the establishment of joint principal offenders, as otherwise alleged in the grounds of appeal.

In addition, the assertion that the part of abuse of authority and obstruction of exercise of rights related to N Co., Ltd. (hereinafter “N”)’s M support is erroneous in the misapprehension of legal principles as to the establishment of status and accomplices, and joint principal offenders, is sought by Defendant A as grounds for appeal or by the lower court’s decision that was not subject to judgment ex officio, and thus, it cannot be a legitimate ground for appeal (see, e.g., Supreme Court en banc Decision 2017Do16593-1, Mar. 21, 2019).

B. As to Defendant B’s ground of appeal

According to the record, Defendant B filed an appeal against the judgment of the first instance solely on the ground that the sentencing was unfair, and the lower court dismissed Defendant B’s appeal. Therefore, the allegation that the lower court erred by misapprehending the legal doctrine on the part of ex officio obstruction of use relating to the leakage of official secrets and N’s M support cannot be a legitimate ground for appeal (see, e.g., Supreme Court Decision 2017Do16593-1, Mar. 21, 2019).

In addition, the argument that there was an error in violation of the principle of balanced punishment or accountability in the judgment of sentencing by the court below constitutes an allegation of unfair sentencing. According to Article 383 Subparag. 4 of the Criminal Procedure Act, only in a case where death penalty, life imprisonment, imprisonment with prison labor for not less than ten years or imprisonment without prison labor for not less than ten years is allowed, an appeal on the ground of unfair sentencing is allowed. As such, the argument that Defendant B was unfair in sentencing is not a legitimate ground for appeal.

The Supreme Court precedents cited on the grounds of appeal are different from the instant case, and thus, are not appropriate to invoke the instant case.

C. (1) Violation of the Act on the Management of Subsidies against Defendant A and fraudulent part on the ground of appeal by the prosecutor

The court below reversed the judgment of the court of first instance which found Defendant A guilty of each of the facts charged and acquitted. Examining the reasoning of the original judgment in light of the relevant legal principles and records, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence by exceeding the bounds of the principle of free evaluation of evidence by violating the logic and experience, or by misapprehending the legal principles on the relation between the deception and the grant of subsidies, etc., or by misapprehending the legal principles on the abuse of abuse of rights and coercion of rights and coercion of the part concerning the support of Defendant B, Defendant B, by deceiving a public official in charge of the Ministry of Culture, Sports and Tourism (hereinafter “the Ministry of Culture, Sports and Tourism”).

The lower court affirmed the first instance judgment that acquitted Defendant B of each of the facts charged on the ground that it cannot be deemed that there was no reasonable doubt that Defendant A and J, and K conspired to commit each of the crimes, or that the functional control by division of roles was performed.

Examining the reasoning of the original judgment in light of relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence by violating logical and empirical rules, or by misapprehending the legal doctrine on the establishment of competitive relations.

2. Ex officio determination shall be made.

A. The crime of coercion is an offense that interferes with the exercise of a person’s right by assault or intimidation or makes another person do not have a duty. Here, intimidation refers to objectively restricting the freedom of decision-making by a person, or notifying harm and injury likely to be drinking to the extent that it interferes with the freedom of decision-making. For such a intimidation to be recognized, a specific threat must be given to the extent possible. When a perpetrator requests the other party to provide certain profits, etc. based on his occupation or position, whether the requested act constitutes a threat of harm and injury as a means of crime of coercion ought to be determined by the Supreme Court en banc Decision 200 Decided the other party’s demand for the provision of harm and injury, such as a crime of coercion, in light of the nature and circumstance of the act, situation at the time of the demand, character, career, mutual relation, etc. of the offender and the other party, it may be deemed that the other party had awareness that it would have been harmful, regardless of such demand, and whether the perpetrator and the other party have been aware of harm and injury that may have been harmful to the other party.

B. The court below affirmed the judgment of the court of first instance that found Defendant A guilty of the crime. However, examining the reasoning of the judgment of the court of first instance and the judgment of the court of first instance, it is difficult to recognize that the above request was the crime of coercion, i.e., intimidation, which is the element of the crime of coercion, and it is difficult to recognize that the above request was the crime of intimidation. The defendants' act of demanding M to N representative Director P, etc. in collusion with the J and K, and ② the defendants' act of demanding M by proxy director P, etc., and the act of demanding the above P, etc. to conclude a service contract by creating a sports team in sequence with Defendant BJ. Q and K, and this part of this case was forced. On the other hand, considering the reasoning of the judgment of the court of first instance and the judgment of first instance as seen above, the above request was a threat, which is the element of the crime of coercion, or a threat of harm and injury. With respect to the company, etc., which may have an influence on this function or actual influence, the above demand has been continuously demanded.

In light of the reasoning of the judgment of the first instance and the evidence duly admitted, it is difficult to view that there are circumstances such as the content and circumstance of the speech and behavior that may be deemed to have had the other party awareness that it would be harmful if the other party would be subject to the said request, the situation at the time of the request, and the character and conduct of the actor and the other party-party-related relationship. The circumstances cited by the first instance court are as follows: (i) the RR officer takes overall charge of the supervision over N; and (ii) the N Society Foundation is also under the supervision of the S Office under the RR; and (iii) the Chief Director TN representative P or N representative P of the said social foundation and the first instance court stated a subjective content of the said request, such as that it was difficult to take charge of or refuse the request of Defendant B at the investigation agency and the first instance court, it is insufficient to evaluate the said request as a threat of harm and injury.

Nevertheless, solely based on the circumstances indicated in its reasoning, the lower court found each of the above demands guilty of coercion. In so determining, the lower court erred by misapprehending the legal doctrine on intimidation in the crime of coercion, thereby adversely affecting the conclusion of the judgment.

3. Scope of reversal

Of the judgment of the original court, the part on coercion against Defendant A and the part on coercion against Defendant B related to Defendant B should be reversed for the same reason as stated in the above 2.2. The part on coercion against Defendant B should also be reversed for the same reason. The part on the above reversal and the part on the ordinary concurrence relation, and the part on one sentence in the concurrent crimes under the former part of Article 37 of the Criminal Act should also be reversed for the same reason. Thus, the conclusion that the part on conviction against the Defendants in the judgment of the original court should be reversed.

Therefore, without further proceeding to decide on the remainder of the grounds of appeal by Defendant A, the part of the judgment of conviction against the Defendants among the judgment below is reversed, and this part of the case is remanded to the court of original instance in order to re-examine and determine, and the prosecutor’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-soo

Justices Kwon Soon-il

Chief Justice Lee Ki-taik

Justices Park Jung-hwa