(영문) 대법원 2017.5.30.선고 2016도21551 판결

1. A. The summary of the facts charged in the instant case is as follows: (a) “The Defendant removed the Defendant’s instant apartment from the elevator with D apartment 113-dong 1, 113-dong 1, which was located in Chuncheon City from September 26, 2014 to November 17, 2014; (b) the notice of the meeting of the Election Commission and Emergency Countermeasure Committee on September 30, 2014; (c) the notice of the meeting minutes issued by the election commission and emergency Countermeasure Committee on September 30, 2014; (d) the notice of the meeting minutes issued by the second election commission and emergency Countermeasure Committee on October 6, 2014; (e) the notice of the result of the visit voting and dismissal on October 16, 2014 (Election 1, 5, and 6); (e) the notice of the election of each building’s representative on October 23, 2014; and (e) the Defendant’s announcement of the agreement by force.

B. The lower court reversed the first instance judgment and acquitted the Defendant on the ground that it is difficult to deem that the Defendant had exercised the power to control the free will of the apartment election commission, or that the free and normal performance of duties of the election commission was impossible or considerably difficult, on the grounds that the Defendant sent a notice attached to one apartment elevator among the apartment units, and that the notice attached to one apartment unit was removed several times.

2. A. “Authority” of the crime of interference with business means all the forces that may cause confusion with the free will of a person. As such, the force of the crime of interference with business is neither tangible nor intangible, nor includes violence, intimidation, social, economic, political status, and pressure by royalty, etc., and in reality, the victim’s free will is not required. However, it means the force sufficient to suppress the victim’s free will in light of the offender’s status, number of persons, surrounding circumstances, etc. As such, whether it constitutes force ought to be objectively determined by taking into account all the circumstances, such as the date and time and place of the crime, motive and purpose of the crime, number of persons, form of force, type of duty, and the status of the victim. Moreover, the force of the crime of interference with business does not necessarily mean only the force directly on duty to directly terminate to a person engaged in business, but also includes acts that make it considerably impossible or considerably difficult to freely act with a person by creating a certain physical condition sufficient to suppress a person’s free will (see Supreme Court Decision 2009Do57909).

B. According to the reasoning of the lower judgment and the record, the Defendant dismissed his children E, who are the representatives of 112 units and 113 units of apartment buildings of this case, on the ground of the receipt of money and valuables related to the selection of service providers, and publicly announced the meeting, minutes, voting, and dismissal results on the bulletin board while proceeding with the election for the selection of a new representative election. Upon determining that the dismissal of E is unfair and the contents of the public announcement are detrimental to the honor of E, the Defendant removed a notice on the facts charged five times without authority. Accordingly, the election commission failed to properly perform the duty of public announcement necessary for holding a meeting, election, etc. In light of the aforementioned legal principles, the Defendant’s above act constitutes a crime of interference with business by force under Article 314(1) of the Criminal Act because the Defendant’s act constitutes an act of causing considerable difficulty in the election management of the election commission, and thus, constitutes a crime of interference with the election management by force under Article 314(1) of the Criminal Act, which does not require any interference with the Defendant’s consent.

Nevertheless, the court below determined that the above act by the defendant does not constitute a threat of force in the crime of interference with business, and sentenced not guilty of the facts charged in this case. In so doing, the court below erred by misapprehending the legal principles on force in the crime of interference with

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.