[1] The elements for establishing a legitimate act under Article 20 of the Criminal Code

[2] The purport of Article 16 of the Criminal Code concerning mistake of law

[3] In a case where a lessor was prosecuted for the crime of interference with business on the ground that a lessee of an office delays the duty to express or clarify the intent to renew the lease contract after the termination of the lease contract, the case rejecting all the allegations of consent of the victim, legitimate act, and mistake

[1] Article 20 of the Criminal Act / [2] Article 16 of the Criminal Act / [3] Articles 16, 20, 24, and 314 of the Criminal Act

[1] Supreme Court Decision 86Do1764 delivered on October 28, 1986 (Gong1986, 3159), Supreme Court Decision 93Do289 delivered on April 15, 1994 (Gong1994Sang, 1555), Supreme Court Decision 98Do2389 delivered on April 25, 200 (Gong2000Sang, 13455), Supreme Court Decision 200Do415 delivered on February 23, 2001 (Gong2001Sang, 813) / [2] Supreme Court Decision 2003Do6282 delivered on February 12, 2004 (Gong204, 503Sang, 204; 2005Do42549 delivered on September 29, 2005)

Defendant

Defendant

Attorney Lee Do-hwan

Seoul Western District Court Decision 2005No757 Decided September 29, 2005

The appeal is dismissed.

We examine the grounds of appeal.

1. As to ground of appeal No. 1 (whether the victim's consent exists)

According to the records, Article 16 (2) of the lease contract of this case provides that "the lessor may request the lessee to take a full-time measure, etc. in the case of Article 16 (1)." However, since there is no reason for the victim to commit a violation provided for in each subparagraph of Article 16 (1) such as delayed declaration of intent or explanation of the renewal contract after the termination of the lease contract, and there is no reason for the victim to commit the act of violating the above Article 16 (1) such as rent and delay of management expenses ( even if there are grounds for the contract, the consent of the victim can be withdrawn at any time, so if the victim made a request for a full-time measure as in this case, such consent shall be deemed to have already been withdrawn). However, since the victim had experience in receiving a full-time measure by the defendant around December 2003, or was notified by the defendant over several times prior to the suspension of the lease contract of this case or requested the defendant, the consent of the victim cannot be viewed as the consent of the full-time measure of this case.

In the same purport, the court below's rejection of the defendant's assertion as to the consent of the victim is somewhat insufficient, but its conclusion is just and there is no error of law by misunderstanding the legal principles as to the consent of the victim. Thus, the ground of appeal pointing out that the measure of cutting off in this case is not guilty as an

2. As to the ground of appeal No. 2 (Justifiable Act)

Whether a certain act constitutes a legitimate act that does not contravene social norms should be determined on an individual basis under specific circumstances. To recognize such a legitimate act, the following requirements should be met: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interests and the infringed interests; (iv) urgency; and (v) supplementary nature that there is no other means or method than the act. (See Supreme Court Decisions 86Do1764, Oct. 28, 1986; 93Do2899, Apr. 15, 1994; 98Do2389, Apr. 25, 200; 200Do415, Feb. 23, 2001; and (ii) the victim’s act cannot be determined on the grounds that it does not violate the legitimate purpose of the lease agreement or the duty to renew the management fee of the defendant to the effect that the victim did not have any other legitimate means or method of rejection.

3. As to the third ground for appeal (whether there was a mistake in the law)

Article 16 of the Criminal Act provides that "the act of misunderstanding that one's own act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable reason for such misunderstanding." It does not mean a simple legal site, but it is generally a crime, but it is true that one's own act constitutes a general crime but, in its special circumstances, it does not constitute a crime as permitted by Acts and subordinate statutes, and it is not punishable if there is a justifiable reason for such misunderstanding (see Supreme Court Decision 2005Do8873, Jan. 13, 2006). Thus, it cannot be deemed that there is a justifiable reason to believe that the defendant who runs the business of leasing the office does not constitute a crime of unilaterally taking measures taken in the above circumstances, and therefore, the decision of the court below to the same purport is just, and the argument in the grounds of appeal that the exclusive measure in this case is not guilty

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)