2017No1593 Interference with business

1. A;

2. B

Both parties

Long-term seating (prosecution) and dives (public trial)

Attorney C (for the defendant A)

Law Firm BR (for Defendant B)

Attorney BS, BT, and BU

Suwon District Court Decision 2016Gohap6 decided May 12, 2017

October 18, 2017

All appeals filed by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. The lower court’s imprisonment (10 months of imprisonment) against Defendant A (unfair punishment) is too unreasonable.

B. Defendant B

1) misunderstanding of facts (Paragraph 2 and 3 of the crime in the original judgment)

A) The Defendant only gave 0 instructions to the effect that he would pass a specific person on the following grounds: (a) he did not transfer a camera received from A to 0 (the crime Nos. 2 and AA related to the original judgment); or (b) did not give O any instruction to the effect that he would pass a specific person on the following grounds: (c) he was aware of the criminal facts in the original judgment; and (d) he was found to have been aware of AH; and (c) he was not guilty

B) The employment of illegal personnel as stated in each of the facts charged in this part is voluntarily conducted by 0, etc. voluntarily scambling the intention of the superior in order to preserve his position in his workplace (the personnel employment system of the Small and Medium Business Corporation at the time of the actual employment) or directly conducted between G and G with the exclusion of the Defendant (in relation to employment work of the U.S., between A and P, the direct instruction and reporting relation was established and operated without excluding I and other settlement seal). C) The statement of 0 and P, the main evidence that the lower court found the Defendant guilty of each of the facts charged in this part of the charges, are inconsistent, inconsistent, and sufficient grounds to make a false statement in order to transfer his/her responsibility to the Defendant.

2) Legal principles (Article 2 and Paragraph 3 of the facts constituting the crime in the original judgment)

A) Although the court below did not err by misapprehending the legal principles as to whether the crime of interference with business was established or not, since the applicant, who cannot take an interview due to the exclusion from the document screening form, etc., applied for the interview, it cannot be deemed that the interview member's interview duty was interfered with. However, the court below erred by misapprehending the legal principles as to whether the crime of interference with business constitutes an object of the crime of interference with business or interfere with business.

B) Paragraph 2 (A-related to the crime of the lower judgment

Although there is no fact to regard the defendant as having committed functional control through essential contribution to the crime in this part, the court below erred by misapprehending the legal principles on functional control over the co-principal in the process of conspiracy and co-principal.

C) Paragraph 3 (AG related to the facts constituting the crime in the judgment of the court below

Although the crime of interference with business constitutes an intentional crime, the court below held that "the defendant could have sufficiently predicted that he would use this unlawful method to make AG successful applicants" (Articles 21, 21, 8, and 9) and recognized the subjective constituent elements of the defendant based on the possibility of predictability. The court below erred by misapprehending the legal principles on the subjective constituent elements.

3) Unreasonable sentencing

The sentence of the court below against the defendant is too unreasonable and unfair. The prosecutor (an unjust) shall be punished.

The sentence of the lower court against the Defendants is too uneased and unreasonable.

2. Judgment on the mistake of facts and misapprehension of legal principles by Defendant B

A. Judgment on the assertion of mistake of fact

1) Paragraph 2 (A-related to the crime of the lower judgment

A) The judgment of the court below

According to the following circumstances acknowledged by the evidence duly admitted and investigated, the lower court determined that the Defendant committed a crime of interference with business as stated in paragraph (2) of the facts constituting the crime in the lower judgment in collusion with A.

(1) A receives a call from a member of the National Assembly on his/her name and recognizes the fact that the Defendant, who is in charge of the employment of new employees, received a call from a member of the National Assembly, and the Defendant, who is in charge of the employment of new employees, stated that “A has an applicant, who is a university in China and well-known Chinese language,” and that the Defendant received a pen name stating A’s name from A, and notified him/her that it is a domain and delivered it to him/her.

(2) From the prosecution to the court of the court below, P and P stated that the defendant reported the entry application form of AA along with the defendant before the document screening to the court of the court below, and divided the conversations on the possibility of passing the document screening. P stated that the defendant instructed him to "the defendant to organize the person (the defendant) as the first interview commissioner of AA". Unlike the contents of the interview screening plan (the draft) in the last half of 2012, the defendant is recognized as having participated as the first interview commissioner of AA. According to the above statements of P and P, the defendant seems to have a great interest in the success of AA after receiving the main interview sheet in which A's name was written.

(3) 0 made a statement from P to the Defendant that he heard the result of the document screening type (unqualified) for AA and made a statement to the above fact. As seen earlier, considering the circumstances that the workplace company particularly BA, through the Defendant, sent the penbook in which the name of AA was written, and that the Defendant reported the entry application form of AA along with the Defendant prior to the document screening, and divided conversations on the possibility of passing the document screening type, it is reasonable to view that 0, like the written statement of 0, reported the result of the document screening type to the Defendant, who is an immediate superior official, prior to the publication of the successful applicant for the document screening, was in accord with the rule of experience.

(4) 0 consistently reported the result of the AA’s grading of the document screening type from the prosecutor’s office to the court of the court below, and the Defendant stated that “the document screening type will not proceed to the match.” As seen earlier, 0 was divided into dialogue on the possibility of passing the document screening type with the Defendant prior to the document screening type, it is difficult to deem that 0 gave the Defendant an instruction to revise the AA’s document screening type scores, on a sole basis, without the Defendant’s instruction.

(5) P states that the Defendant’s instructions changed the interview score of AA from 85 to 99, which is consistent with objective data. P did not change interview score of two interviewers who participated in the interview of A, but only revised the Defendant’s score and 14 points or rise in the score. This is a reason why P was instructed by the Defendant to determine whether the interview score was modified, and that there was a need to pass AA even if the Defendant mobilized abnormal methods.

(6) Even if each statement in P's investigation agency and court of the court below, which correspond to this part of the facts charged, is somewhat different from the geographical and simple part, it can be viewed as due to the inaccurate memory naturally revealed through the passage of time, and thus, its credibility is recognized.

B) Determination of the immediate deliberation

In full view of the following circumstances acknowledged by the evidence duly admitted and investigated by the court below and the court below, the defendant's interview with the visitors in charge of interview with A by ordering 0 et al., a working worker for the recruitment of new employees, to employ AA as a new employee through unlawful methods, etc. The court below's decision to this purport is just and it is not erroneous in the misapprehension of facts. This part of the defendant's assertion is without merit. (1) Unlike the time of the employment instruction for BV (the crime No. 1 of the judgment of the court below), unlike the time of the employment instruction for the NV (the crime No. 1 of the judgment of the court below), the defendant directly sent to the defendant, who is not the NV team leader, and entered the name of A, but in light of the statements of A related to the circumstances, it is not deemed that A merely transferred the above part to 00.

(2) In light of the strong position as A’s G and the Defendant’s position, career, etc., it is reasonable to deem that the Defendant, even as the Defendant, was aware of the foregoing behavior of A as a matter of responsibility and responsibility as a personnel recruitment instruction for AA at the time. Moreover, as the Defendant was also given the first direction regarding the recruitment of G personnel after he was appointed as the Defendant, it is difficult to readily understand that the Defendant did not have any interest merely because he did not go beyond the working person.

(3) In the course of performing the personnel employment work for AA under the direction of the Defendant, it is difficult to find out the circumstances that 0 directly reported the progress and result to A, who was excluded from the Defendant, or that A directly instructed the Defendant without going through the Defendant with respect to employment for A. Moreover, it is difficult to obtain it in light of the empirical rule to view that 0 independently performed work without reporting to the Defendant on the matters for which 0 directly instructed by the Defendant, who is the direct superior officer, was given instructions from the Defendant (the same shall apply in consideration of the fact that the act such as the operation of document screening scores, etc. may result in the occurrence of heavy responsibility).

(4) As above, at the time when the Defendant received the direction of personnel employment for AA from the Defendant, he received the direction of personnel employment for B from A, and as such, he did not take any measures against this, and eventually failed BW. As to this, at the time of receiving the said order from A, the Defendant was also the Defendant at the time of receiving the said order, but at the time, the Defendant was aware of, or was thought to have made a subsequent direction to the effect that at the time, the Defendant would be able to think about the Defendant at the time, and that he was able to do so. In light of these circumstances, the Defendant’s assertion to the effect that 0 was in itself, even if he did not receive the direct order from A, it would be excessive to A by carrying out daily treatment, and it is difficult to accept the Defendant’s assertion to the effect that the employment-related case was made as part of it.

(5) Comprehensively considering the above circumstances, 00 statements, etc. to the effect that "the defendant deemed AA's membership assistance at the personnel consultation office together with him and discussed AA's success possibility", and 0 statements, etc. to the effect that "the defendant reported the result of the AA's grading on the document screening (unqualified)" and "I will not proceed with the document screening" from the defendant, and 0 statements, etc. to the effect that "I will not proceed with the document screening."

(6) The mere fact that a witness’s statement is consistent in the main part of the statement is not somewhat consistent with the statement on other minor matters (see Supreme Court Decision 2007Do10728, Mar. 14, 2008). 0 and P consistently make the major facts supporting this part of the facts charged from the investigative agency to the court of original judgment. However, since the AAA job application form is somewhat small and minor matters such as the developments leading up to output, it is not consistent with the above statements or partly contradictory, it is difficult to deny the credibility of each of the above statements by 0 and P without permission.

(7) Meanwhile, 00 and 00 began to make a new statement at the 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 3th 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 3th 2nd 2nd 2nd 3rd 2nd 2nd 2nd 2nd 2nd 2nd 3nd 2nd 2nd 2nd 2nd 3nd 2nd 2nd 3nd 2nd 2nd 3nd 2nd 2nd 2nd 20

2) Paragraph 3 (AG-related) of the facts constituting the crime in the judgment below

A) The judgment of the court below

According to the following circumstances acknowledged by the evidence duly admitted and investigated, the lower court determined that the Defendant committed a crime of interference with business as stated in paragraph (3) of the facts constituting the crime in the lower judgment.

(1) The Defendant’s statement to the effect that it is an applicant who is aware of AH (former G before the Jung-gu Business Promotion Foundation, and at the time of the instant case) while delivering AG’s name, etc. to the Defendant.

(2) This is consistently stating that “A and AG have entered the successful applicants in the document screening list,” while reporting the final successful applicants in the document screening list, the Defendant stated that “A and AG have entered the successful applicants.”

(3) Considering the fact that the Defendant himself appears to have been aware of the contact with AH as a personnel solicitation, that the Defendant sent a note to her while ordering the name of AH, and that the Defendant was a 0 official or higher position, the N Team leader, the Defendant is deemed to have credibility.

(4) As seen earlier, it is reasonable to view that the Defendant’s implementation of the AG in accordance with the Defendant’s implied instruction, including the same unlawful method, of making the AG successful applicants, as well as the Defendant’s implementation of the AG as a means of mobilization, by modifying the document screening points according to the Defendant’s instruction and allowing the AG to pass through the document screening with respect to the AA, which has already been delivered by the A to the domain, as seen earlier. It is reasonable to deem that the Defendant, as well, could have been sufficiently anticipated that the 0th illegal method would have been mobilized to make the

(5) Although the 0th statement about whether the Defendant reported the result of the AG document screening type (not passing) to the Defendant is unclear and consistent, it can be deemed due to the inaccurate memory naturally appearing due to the psychological chilling and the passage of time, which can be seen as attributable to the investigation process. Thus, it does not seem to be a reason to reject the credibility of other 0 statements that correspond to this part of the facts charged.

(6) According to the court below's statement in BC, BC, while serving as G, appointed 0,00 only the first technical skilled person as the NBD as the NBC, and newly established the organization of 'BD', and appointed the Defendant as the Minister. At the time of the instant case, the Defendant was not in a friendly relationship with BC. It appears that both the Defendant and the Defendant were in a friendly relationship with BC, and that there was no reason to illegally employ new staff members for AG for the purpose of BC, not the Defendant.

B) Determination of the immediate deliberation

In full view of the following circumstances acknowledged by the court below and the evidence duly admitted and investigated by the court below, it may be recognized that the Defendant’s instructions to employ AG as a new employee through unlawful means, etc., by ordering 0 et al., a person engaged in the recruitment of new employee, to employ AG as a new employee, thereby interfering with the interview work of the interview members in charge of the interview examination of AG. The judgment of the court below to the same purport is just and it is not erroneous in the misapprehension of facts. This part of the Defendant’s assertion is without merit.

(1) In light of the strong position of AH (BB at the time of the transfer interest of the Small and Medium Business Corporation) and the position, career, etc. of the Defendant, it is reasonable to deem that the Defendant was in receipt of a personnel solicitation or a personnel employment instruction for AG with respect to contact with the Defendant regarding AG. Therefore, the Defendant immediately delivers to a person who is engaged in personnel employment and who is subject to the direction and supervision of AG’s name, and delivers to the person who is subject to the direction and supervision of AG’s name, and “AG’s request before the AH is well-known.” It may be deemed that the Defendant’s submission to “a’s request for personnel management or personnel employment order directly received from AH is for

(2) As seen in Article 2-2(a)(1)(b), as seen in the above, the Defendant reported the result of the AA’s document screening (unsuccessful) to the effect that the document screening process from the Defendant would not proceed to the match, and ordered the P to the effect that the document screening process would not proceed to the match. As seen above, the delivery of the document screening process from the Defendant was not much unreasonable (0 days are consistently stated about the post-mark relationship and its interval at each point).

(3) In light of the point at which 0 was the Defendant’s note, the situation at the time when 0 was the Defendant’s note, the status of AH, etc., it seems that 0 was bound to accept the Defendant’s above act as an order for personnel employment of AG as in the case of the previous AA. In addition, in light of the similarity between the instructions for personnel employment, it is natural to view that, even if the result of the document screening for the future AG was not satisfied, it is anticipated that the Defendant would be ordered to proceed as it is from the Defendant even if he reported the fact to the Defendant, as in the case of the previous case. In addition, at the time, 0 was very bad at the time when the list of the successful applicants in the document screening was imminent, and thus, it seems that 0 was determined that there was no reason to make an unnecessary report to the Defendant.

(4) In light of the above circumstances, even if the Defendant did not report the result of the document screening for AG after 00 without reporting it to the Defendant, the personnel recruitment procedure for AG was conducted (it is true that the Defendant’s participation in this part of the crime was externally delivered to the initial 0), the personnel employment instruction for AG is deemed to have been carried out together by 0 as well as the former AA’s personnel employment instruction. Thus, it cannot be deemed that the personnel recruitment procedure for AG, which is the charge of this part of the crime, was carried out independently regardless of the Defendant’s instruction.

(5) Meanwhile, it is difficult to find out the circumstances that AH made the same solicitation or direction to 0 separate from the solicitation or direction of the Defendant as seen above. Moreover, it is difficult to see in light of the empirical rule that BB made a direct contact with the Defendant, who is a person in charge of personnel employment affairs of G A or the Small and Medium Business Corporation, as an affiliated institution of the Small and Medium Business Corporation, and directly contacted the Defendant, who is an affiliated institution of the Small and Medium Business Corporation, and issued a personnel solicitation or personnel employment order.

(6) In addition, there is no circumstance to deem that the Defendant was unable to have a friendly relationship with AH to the extent that he/she would proceed with the recruitment procedure for AH based on his/her own judgment for the benefit of AH, regardless of the Defendant’s instructions. Of course, it is reasonable to deem that the relevant personnel employment instruction was attributable to AH in determining the seriousness, etc. of the case from the perspective of 0. However, it is reasonable to deem that the actual process of this part of the personnel employment procedure was due to the Defendant’s receipt of instructions from the Defendant, who is the superior of his/her position. In other words, the Defendant merely used unlawful methods in order to avoid any disadvantage in personnel affairs by failing to comply with the instructions from the superior’s instructions, thereby passing the procedure for AG.

B. Judgment on the misapprehension of legal principles

1) misunderstanding of legal principles as to whether the crime of interference with business is established (common assertion)

A) Relevant legal principles

In relation to the crime of interference with business through deceptive means, it is sufficient that a deceptive scheme causes mistake, mistake, or land to be used by the other party in order to achieve the purpose of the actor’s act, and that the crime of interference with business is established if it does not require the result of the interference with business to actually occur, and it is also sufficient that the crime of interference with business is established even in cases where the propriety or fairness of business is obstructed, not by the performance of duties itself (see, e.g., Supreme Court Decisions 2006Do487, Dec. 21, 2006; 200Do5669, Oct. 25, 2002).

B) Determination

As seen earlier, 0 et al., the personnel employment workers of the instant case, upon the Defendant’s instruction, had the AA and AG Small and Medium Business Corporation apply for the first and second interview for the successful applicants in the document screening by passing the document screening process for new employees in the second half of 2012. In light of the aforementioned legal principles, the act of score manipulation in the instant case constitutes a deceptive scheme that causes misconception, misconception, or sites about the legitimate qualification of the applicants for the interview, and that the act of score manipulation constitutes a fraudulent scheme that causes misconception, misconception, or misconception of the legitimate qualification of the applicants for the interview, and that is deemed to have impeded the appropriateness or fairness of the interview work conducted by the interviewers by the deceptive scheme. This part of the Defendant’s assertion is without merit.

2) Criminal facts of the judgment below

As examined in the above 2-A. 1.b., the Defendant’s action is sufficient to recognize a functional control over a functional act through an essential contribution in this part of the crime. This part of the Defendant’s assertion is without merit.

3) The Defendant’s assertion in this part of the crime No. 3 of the judgment of the court below seems to have been relied on using the expression “it could have been predicted in good faith.” However, examining the overall purport of the part of the judgment of the court below, it is understood that the Defendant, even though he could have sufficiently predicted that the Defendant would make AG successful applicants even by using unlawful means, he would have been able to accept the risk of occurrence, and that he ordered the Defendant to employ AG personnel as stated in the crime No. 3 of the judgment of the court below. Therefore, this part of the judgment of the court below is merely merely an expression of the Defendant’s intention to have an incomplete intention, and it cannot be deemed to have recognized the Defendant’s negligence as a subjective constituent element.

Ultimately, the defendant's assertion of legal principles is without merit.

3. Determination on the Defendants and the Prosecutor’s assertion of unreasonable sentencing

Although the Defendants, as G and G of the Small and Medium Business Corporation, have a duty to manage and supervise so that the employment of personnel of the said Corporation may be conducted fairly and appropriately, the Defendants, upon receiving personnel requests from outside workers and directed them to the practitioners subject to their direction and supervision so that the recruitment of personnel was made by unlawful means, such as manipulating documents screening scores. As a result, the general trust in the society regarding the employment of personnel of public institutions, including the Small and Medium Business Corporation, has been severely damaged, and the majority of the general voters who want to be employed through legitimate means have been deprived of and deprived of their reputation and deprivation of their reputation in light of the current situation of our society where they had experienced serious disturbance of employment. Furthermore, it seems that our social expenses to be paid for this reason are also harsh. Nevertheless, Defendant B still denied crimes in substitution and did not properly reflect their mistakes.

However, Defendant A has no record of criminal punishment except once a fine is imposed, and Defendant B has led to a confession of an offense and reflects his/her mistake. Defendant B has served as a public official. While serving as a public official, Defendant B has served in good faith for a long period of time, such as being awarded an order and commendation during his/her work at the Small and Medium Business Corporation. Some of the Defendants’ respective statements pertaining to personnel solicitation have been helpful to reveal the substance of the instant case. In full view of the Defendants’ age, character and behavior, environment, motive and circumstance of the offense, means and consequence of the offense, and all of the sentencing conditions indicated in the instant records and arguments, including the circumstances after the commission of the offense, etc., the sentence against the Defendants is too heavy or uneasible. The Defendants and the prosecutor’s assertion of unfair sentencing are without merit.

4. Conclusion

Since the appeal by the Defendants and the public prosecutor is groundless, all of them are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge shall be appointed and appointed concurrently.

Judges Kim Gin-han

Judge Park Sung-sung