[1] Whether there is a need for the other party to realistically feel fear in order to reach the conviction of intimidation (negative)

[2] In a case where a police officer belonging to the Information and Security Department used his/her position to intervene in a civil dispute of another person and failed to repay his/her debt as soon as possible, the case holding that since it constitutes a notice of harm and injury sufficient to the extent that the other party made fear objectively, it constitutes an objective crime of intimidation even if the victim did not feel fear, it constitutes a crime of intimidation

[3] Whether a crime of intimidation is established where harm was notified as part of the exercise of right or execution of duty

[4] In a case where a police officer belonging to the Information and Security Department used his/her position to intervene in a civil dispute of another person and failed to repay his/her obligation as soon as possible, reporting it to the upper department and raise an issue, the case holding that the act does not constitute a legitimate execution of duties or an act of political party because it cannot be recognized as a reasonable means to achieve the objective, even though the purport of determining whether the other party performs his/her duties in accordance

[5] The meaning of "disclosure of the contents of materials of investigation cards" under Article 6 (2) of the former Act on the Lapse of Criminal Sentences

[1] [Majority Opinion] (A) In order to establish a crime of intimidation, the content of harm and injury notified must be sufficient to cause fear to a person generally in light of the following circumstances: (a) the degree of harm and injury and the other party’s tendency, surrounding circumstances at the time of the notification; (b) the degree and status of the perpetrator and the other party; and (c) the relationship between the third party and the third party before and after the act, etc., including the relation between the third party and the perpetrator. However, it does not require the other party to feel feel realistically; and (d) as long as the other party perceived the meaning of harm and injury by notifying the other party of such degree of harm and injury, the elements of the crime of intimidation are satisfied and should be interpreted to have been completed regardless of whether the other party realistically caused fear.

(B) Ultimately, it is reasonable to deem that a crime of intimidation is a dangerous crime whose protected legal interest is the freedom of decision-making by a person. The penal provision of a crime of intimidation applies only to cases where the notice of harm was not actually delivered to the other party, or where the other party did not perceive it or did not recognize the meaning of the harm notified.

[Dissenting Opinion by Justice Kim Young-ran and Justice Park Poe-young] (A) Even if the existence or degree of such fear has been caused by the threat of harm and injury, it cannot be determined or if there is no objective measure or standard for judgment. In full view of the objective criteria for determining whether a person has caused fear of actual fear and the proof of both parties in individual cases and the specific circumstances recognized thereby, if it is proved that the other party has caused fear of actual fear by the act of intimidation, it shall be recognized that the crime of intimidation has been committed. If proof is insufficient or it is proved that the other party did not feel realistically, it would be recognized as having been committed against the attempted crime if it is proved that the other party did not feel realistically, or that the other party did not feel fear of actual fear, it is difficult to solve the question about whether it has already been committed. Rather, punishment as a crime of intimidation is not consistent with the general principles of criminal law, such as “when a person is a defendant's interest,” and rather, there is concern of excessive punishment and punishment.

(B) Ultimately, the crime of intimidation under the current criminal law shall be deemed to be a crime of intimidation only when the notice of harm and danger that may generally cause fear to the other party reaches the other party and the other party recognizes its meaning and further causes actual fear.

[2] In a case where a police officer belonging to the Information and Security Department used his/her position to intervene in a civil dispute of another person and failed to repay his/her debt as soon as possible, reporting to the upper part and raise an issue, the case holding that the crime of intimidation was committed even if the victim did not feel a fear objectively because it constitutes a notice of harm and injury sufficient to cause fear by the other party.

[3] In cases where notice of harm and harm was given to the other party as part of the exercise of the right or the execution of the duty, if such notice does not go against social norms as a legitimate exercise of the right or the execution of the duty, a crime of intimidation is not established. However, even if it appears to be an exercise of the right or the execution of the duty, if it actually becomes an abuse of the right or authority and goes against social norms, it shall be deemed that the crime of intimidation is established. Specifically, if the notice of harm and harm is deemed to be a considerable means for the legitimate purpose, the illegality shall be dismissed, but if such relation

[4] In a case where a police officer belonging to the Information and Security Department stated that he/she would report to the upper department and raise an issue if he/she did not repay his/her obligation as soon as possible by participating in a civil dispute with his/her position, the case holding that the act does not constitute a legitimate execution of duties or an act of political party because it cannot be recognized as a reasonable means to achieve the objective, even though the purport of determining whether the other party performed his/her

[5] The legislative purpose of the former Act on the Lapse of Criminal Sentences (amended by Act No. 7624 of Jul. 29, 2005) is to ensure a person’s normal rehabilitation into society by prescribing the criteria for the management of criminal records and investigation data and the invalidation of punishment. A person before and after the crime is known that he/she is not his/her specific criminal record but his/her own criminal record, his/her disclosure of the contents of the materials of investigation cards will seriously impede his/her normal rehabilitation into society. In light of the forms and contents of Articles 6(2) and 10(1) of the same Act, “disclosure of the contents of materials of investigation cards” referred to in the above provision includes not only divulgence by clearly stating the contents of the crime, type, and period of punishment on the materials of investigation cards, but also leakage of facts that a person has a specific criminal record.

[1] Articles 283(1) and 286 of the Criminal Act / [2] Articles 283(1) and 286 of the Criminal Act / [3] Articles 20 and 283 of the Criminal Act / [4] Articles 20 and 283 of the Criminal Act / [5] Articles 6(2) and 10(1) of the former Act on the Lapse of Punishment, etc. (amended by Act No. 7624, Jul. 29, 2005)

Defendant

Defendant

Attorney Kim Byung-kil

Daegu District Court Decision 2006No2627 Decided December 28, 2006

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the crime of intimidation

A. As to the assertion of violation of the rules of evidence

In light of the reasoning of the judgment below and the evidence admitted by the court of first instance as cited by the court below, in a situation where the victim non-indicted 1 was urged by Non-indicted 2 to pay the money received from the non-indicted 2 under the pretext of sale of housing site and commercial area in the university site, the court below's decision that recognized that the defendant, a police officer belonging to the (name omitted) police station information security department and police officer, called "B (name omitted) police station information and work (name omitted) on the victim's telephone around 12:30 on May 30, 203, and notified the victim of harm and injury by sending the phone to the victim. Whether Non-indicted 2 is a person living together in the house, and when he comes to the house, he will report to the upper part and raise the problem." There is no violation of the rules of evidence as alleged in the ground of appeal.

B. As to the assertion on the elements of the crime of intimidation

Intimidation in a crime of intimidation refers to a threat of harm to an extent that may cause a person to feel a fear, and the subjective constituent elements thereof are to recognize and recognize that an actor informss of harm to such an extent (see, e.g., Supreme Court Decisions 90Do2102, May 10, 1991; 2006Do2311, Jun. 15, 2006). For a crime of intimidation to be established, the contents of harm notified are the inclinations of the offender and the other party, surrounding circumstances at the time of the notification, mutual relation between the offender and the other party, such as the degree of friendship and status, etc. between the third party and the perpetrator, if they are notified of harm by a third party, it should be sufficient to cause fear to the other party. However, it does not practically cause fear to the other party, regardless of whether it actually requires the other party to feel, so long as the other party is aware of the harm and injury, it should be interpreted that it actually causes fear.

Article 286 of the Korean Criminal Code provides for punishing an attempted crime of intimidation, but there is a provision punishing an attempted crime, which does not necessarily mean that an attempted crime is an infringement crime, and it is practically impossible to objectively deliberate and determine the other party's emotional reaction extending over the area of subjective, complex and intangible consciousness. In light of the above, it is not appropriate to interpret that the issue of whether the other party has caused fear is determined depending on whether the other party has actually made fear or not, even if the other party expresses his emotional reaction or emotional state of the past, and the other party expresses his emotional reaction or emotional state of the past, and there is no objective measure to measure the degree.

Ultimately, it is reasonable to view the crime of intimidation as a dangerous crime whose protected legal interest is the freedom to make a decision, and the penal provision of the attempted crime applies only to cases where the notice of harm was not actually delivered to the other party, or where the other party was not aware of the meaning of the harm notified, or where the other party was not aware of it.

In light of the above legal principles, it is objectively deemed that the defendant's expression that he would report to the upper department and raise an issue if he did not pay as soon as possible while having known that he was in the position of police officer with information and belonging thereto constitutes a threat of harm sufficient to cause fear to an ordinary person. Thus, as long as the victim clearly recognized the purport of the notification, it should be deemed that the crime of intimidation has been committed regardless of whether the victim realistically caused fear or not.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the elements of a crime of intimidation.

C. As to the assertion that the act constitutes a justifiable act

In the event that the notice of harm and injury was given to the other party as a part of the exercise of the right or the execution of the duty, if the notice of harm and injury does not go against the social norms as a legitimate exercise of the right or the execution of the duty, the crime of intimidation is not established, but if it appears to be a legitimate exercise of the right or the execution of the duty, and it actually becomes an abuse of the right or authority and goes against the social norms, it shall be deemed that the crime of intimidation is established. Specifically, if the notice of harm and injury can be seen as a reasonable means for the legitimate purpose, it shall be deemed that

According to the reasoning of the judgment of the court below, the defendant, who was consulted by the non-indicted 2, who was aware of the fact that he was unable to receive money from the victim, upon the request of his friendship, heard from the non-indicted 2 the explanation about the situation he was faced by him, and expressed his phone to the victim that he was an information and a criminal case, and the non-indicted 2 said that he would report the case to the upper part where he was aware that he was living together with the victim and the non-indicted 2 promptly and raise an issue. At the time, the defendant did not regularly investigate or investigate the case caused by the monetary transaction between the victim and the non-indicted 2, and was transferred with a clear doubt about the charge of the crime.

According to this, first of all, the content of harm and injury that the defendant notified to the victim may raise a problem by reporting it to the competent agency according to the case of the defendant, and it is nothing more than that of the defendant's intent to perform his duties. The purpose of this provision is the prompt repayment of the victim's debt to the non-indicted 2 or compensation for the damage, and even if it cannot be deemed unlawful or unfair in itself, it cannot be deemed that it was illegal or unfair. However, in light of Article 10 (Prohibition of Unfair Intervention in Public Disputes) of the Police Officers Service Regulations, "shall not intervene unfairly in any other person's civil dispute by taking advantage of position or official authority," and the situation at the time of transfer when the victim's suspicion of crime is revealed, it cannot be evaluated as part of the legitimate execution of duties, and it shall not be recognized as a considerable means to achieve the purpose.

Therefore, the judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to a justifiable act, since the above notice of harm and injury cannot be seen as a justifiable act as a police officer or an act that does not go against social norms.

2. As to the ground of appeal on the violation of the Act on the Lapse of Punishment, etc.

Article 6 (2) of the former Act on the Lapse of Criminal Sentences (amended by Act No. 7624 of July 29, 2005) provides that "any person who manages the materials of investigation cards or who conducts criminal records or investigation records on the materials of investigation cards in the course of performing his/her duties shall not divulge the contents of such materials of investigation cards." Article 10 (1) of the same Act provides that "The legislative purpose of the same Act is to provide for the criteria for the management and invalidation of criminal records and investigation materials, and to provide for the standards for the invalidation of punishment, thereby ensuring a normal rehabilitation of a criminal suspect. A criminal suspect who is known that he/she is a criminal record other than his/her own specific criminal records is not his/her own criminal records, may seriously impede his/her normal rehabilitation into society, and in light of the forms and contents of the above penal provisions, it shall include not only the criminal records on the materials of investigation cards, punishment, and criminal punishment, but also the act of divulging facts by clearly pointing out not only the criminal records, punishment, and the specific criminal records.

Therefore, all acts of the defendant who had referred the above non-indicted 1 to the above non-indicted 1 in the police station shall be deemed to fall under the "disclosure of the contents of the materials of investigation." In light of various circumstances indicated in the reasoning of the judgment of the court below, such as the motive and behavior of the defendant, and the status of the defendant, the defendant's intentional act is recognized. The judgment of the court below is just, and there are no errors in the misapprehension of legal principles as to the requirements for the establishment of a violation of Article 10 (1) of the same Act or the violation of the rules of evidence, etc., as alleged in the ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges, except for a dissenting opinion by Justice Kim Young-ran and Justice Park Il-young as to the judgment on the requirements for establishing a crime of intimidation.

4. Dissenting Opinion by Justice Kim Young-ran and Justice Park Ill-sook is as follows.

A. The majority opinion held that a crime of intimidation is a dangerous crime, the protected legal interest of which is the freedom of decision-making by a person, so long as the notice of harm that may generally cause fears to the other party reaches the other party and the other party recognizes its meaning, the elements of intimidation shall be satisfied regardless of whether the other party realistically promulgated or not, and shall be deemed to have reached the conclusion.

B. However, we cannot agree with the above majority opinion for the following reasons.

(1) In the former Criminal Code (amended before the enactment of the Korean Criminal Code on September 18, 1953), the German Criminal Code, and the Japanese Criminal Code, where there is no provision punishing an attempted crime of intimidation, there is room to take the same position as the majority opinion on the time of the commencement of the crime, considering the necessity of punishment even if the victim did not feel realistically due to the act of intimidation, even if there is a need to punish the act of intimidation.

However, the current Criminal Code has a provision punishing an attempted crime of intimidation. The legislative intent of the above provision is to regard the crime of intimidation as a crime of infringing on the victim, and to punish the other party as an attempted crime in a case where the other party knows the meaning of the notification of harm and danger, but the other party does not feel realistically, and to draw a proper sentencing considering the degree of damage, etc. of the victim.

Whether or not to regard a certain crime as a dangerous crime is an infringement crime or not is a matter of interpretation of the positive law, except where it is natural in the form of a crime.

The crime of intimidation is a crime of notifying harm that may cause fear to the other party as a constituent element, and cannot be determined as a crime of infringement or danger in the form of a crime, but in light of general social perception, if it did not cause fear to the other party, it is natural to understand it as an attempted crime. This is because an attempted crime usually appears in two forms, such as a attempted crime which has not completed the elements of a crime, and a failed crime which has completed the elements of a crime but did not cause any result.

However, there is room to interpret it as a dangerous crime in consideration of the necessity of general punishment because there was no penal provision for attempted crimes in the time of the former Criminal Act, but there is no need to interpret it under the current Criminal Act. Even in the case of theories, the view that the crime of intimidation should be interpreted as a crime of invasion under the current Criminal Act is a tension in view of the general form of such attempted crime.

(2) In light of the fact that the meaning and criteria for determining whether a person causes fear are different for each person, and there is no objective measure to measure the degree, etc., the Majority Opinion deems it inappropriate to interpret that the existence of a crime of intimidation depends on whether the other party realistically causes fear or not.

However, in a crime of intimidation, the threat of harm refers to the threat of harm that may cause fear to the general public. In determining whether the elements of a crime of intimidation are satisfied, it shall be sufficient by examining whether there was a threat of harm to the above extent. However, in determining whether a crime of intimidation has been committed or not, it is necessary to consider whether the other party realistically caused fear, i.e., whether the other party's freedom of decision-making, which is the legal interest of the crime of intimidation, has been practically infringed.

In addition, even if whether or not a person has realistically caused fear or the degree thereof can be different for each person, such circumstance alone does not necessarily lead to the conclusion that there is no objective measure or standard to determine whether or not a person has actually caused fear or not, and if it is proved that the other party has actually caused fear due to the act of intimidation in full view of the objective criteria to determine whether a person has actually caused fear, the prosecutor in an individual case, the defendant's proof, and the specific circumstances recognized thereby, it shall be recognized that the crime of intimidation has been completed. If it is proved that there is insufficient proof or that the other party has not actually made fear, it shall be recognized as the attempted crime, and if it is proved that there is insufficient proof or that the other party has not actually made fear, it is not inappropriate to deem this result as the attempted crime of intimidation.

The legal principle that “in the event of doubt, the interest of the defendant shall be applied in such a case, and if there is doubt as to whether it has been completed, it would be difficult to solve such questions as criminal attempt, and it would not be in conformity with the general principles of criminal law, and it would only lead to fear of excess of punishment.

(3) If so, it is reasonable to view the crime of intimidation under the current Criminal Code as a crime of infringement only when the notice of harm and danger, which is generally likely to cause fear to the general public, reaches the other party and the other party recognizes its meaning and further causes actual fear. The existing Supreme Court precedents do not seem to clearly conflict with this opinion regarding the timing of the crime of intimidation.

(4) In light of the above legal principles and records, there was no statement that the victim caused fear at an investigative agency in relation to the act of intimidation in this case, and instead, there was no evidence that the court below testified that it was not completely hard to find, and there was no other evidence that the victim actually caused fear due to the defendant's act of intimidation, it is reasonable to view the crime of intimidation in this case as an attempted crime, and otherwise, the judgment of the court below that the crime of intimidation in this case was completed is erroneous in the misapprehension of legal principles as to the period of the crime of intimidation, which affected the conclusion

C. Therefore, the judgment of the court below should be reversed due to such illegality, and the majority opinion is different from this conclusion, so we express our opinion as above by the dissenting opinion.

Chief Justice Kim Young-chul (Presiding Justice)