2007Do606 Violation of the Act on the Lapse of Criminal Sentences, Intimidation

by the Supreme Court of Korea

Chief Justice Lee Yong-hoon(Justice in Charge)
Justices Koh Hyun-chul, Kim Young-ran, Yang Seung-tae (Presiding Justice), Kim Hwang-sik, Park Si-hwan, Kim Ji-hyung, Lee Hong-hoon, Park Il-hoan, Kim Nung-hwan, Jeon Soo-ahn, Ahn Dai-hee

Main Issues

1. Whether it requires the other party realistically felt fearful to have the constituent of a crime of intimidation met.
2. The case the defendant mentioned raising an issue and his status as a police officer working in the Information Department unless a quick repayment is made, shall amount to the disclosure of a malicious intent enough to cause fear to an ordinary person, so as long as the victim obviously recognized its purport, it reached the consummation of a crime of intimidation regardless of whether the victim realistically felt fearful or not.
3. Whether a crime of intimidation is constituted, when a disclosure was made about a malicious intent as part of the exercise of the right or work performance.
4. The case where the policeman under the Information Department, attesting his status, intervening the civil disputes of others, told that he would raise an issue unless the money is not quickly paid. Even if it was under intention that he could raise an issue according to whether the other party paid the debt and compensate for damages, it is not deemed to be justifiable work performance or a fair means to achieve the goals, therefore, it is not justifiable act.
5. The meaning of the "reveal of the content of the investigation data" in Article 6 Section 2 of the former Act on the Lapse of Criminal Sentences.

Summary of Decision

1. [Majority Opinion]

A. For a crime of intimidation to be constituted, the content of the disclosed malicious intent has to be enough to cause fear to an ordinary person, considering the personality of the actor and the other party, surrounding situations at time of disclosure, degree of friendliness between the actor and the other party, and in case the malicious intent was disclosed by a third party, the relationship implied between the third party and the actor, but that does not mean that the other party is required to realistically feel fear, and as long as the other party is aware of the meaning of the disclosure of such malicious intent, the constituent of a crime of intimidation is met, regardless of whether the other party realistically felt fearful or not.

B. A crime of intimidation shall be deemed to be a crime of danger whose protected legal interest is the freedom to make decisions, and the above provision to punish attempts shall only apply to cases where the disclosure of the malicious intent did not reach the other party, or it was not perceived by the other party though it reached him, or the other party did not recognize the meaning of the disclosed malicious intent.

Dissenting Opinion of Justice Kim Young-ran, Park Il-whan

A. Even though different people have different threshold to fear and the degree of the fear, that is not sufficient to confirm whether the person felt fearful or that there is no objective measure for the degree, it is not appropriate to determine a consummated crime, and the objective measure to determine whether a person felt fearful or not shall be proved by the compilation of the testimonies by the prosecutor or the defendant on a case by case basis as well as specific situations, and if it is proved that the act of intimidation caused fear in the other party, it shall be recognized that the crime of intimidation has consummated, otherwise it shall be recognized that the crime of intimidation stopped as an attempt, which shall not be deemed inappropriate.

The legal principle, "when in doubt, for the benefit of the defendant" shall apply to a case like this, and if there is doubt whether the consummation was reached, it can be punished as an attempt, and punishing all case as consummation because it is hard to resolve the doubts go against the general principle of the Criminal Act and shall cause concerns about excessive punishment.

B. Under the current Criminal Act, a crime of intimidation is a crime of invasion, and reaches consummation when a disclosure of a malicious intent reaches the other party to a degree to cause fear, when the other party recognizes the meaning and feel fearful,

2. The fact that the defendant mentioned raising an issue and his status as a police officer working in the Information Department unless a quick repayment is made, shall amount to the disclosure of a malicious intent enough to cause fear to an ordinary person, so as long as the victim obviously recognized its purport, it reached the consummation of a crime of intimidation regardless of whether the victim realistically felt fearful or not.

3. If a disclosure was made about a malicious intent as part of the exercise of the right or work performance, a crime of intimidation is not constituted if the disclosure does not go against social norms as a justifiable exercise of the right or work performance, but even if it might seem to be a justifiable exercise of the right or work performance, if it is an abuse of a right or job authority and goes against social norms, a crime of intimidation is constituted, and more specifically, if the disclosure was a means for a justifiable purpose, illegality shall be formed, otherwise the illegality shall not be formed.

4. Policeman under the Information Department, attesting his status, intervening the civil dispute of others, told that he would raise an issue unless the money is not quickly paid. Even if it was under intention that he could raise an issue according to whether the other party paid the debt and compensate for damages, it is not deemed to justifiable work performance or a fair means to achieve the goals, therefore, it is not justifiable act.

5. Article 6 Section 2 of the former Act on the Lapse of Criminal Sentences (before it was amended to Act Number 7624 on July 29, 2005) stipulates, "a person who manages investigation data or a person who checks criminal records or investigation records using the investigation data shall not reveal the content of the investigation data," and punishes any person who reveals the content of the investigation data in Article 10 Section 1, considering the fact that the purpose of the above Act is to determine criteria on the management of criminal records and investigation data as well as the lapse of criminal sentences to guarantee a criminal’s normal return to society, and the fact that a criminal has great trouble with normal return to society only with the disclosure of the fact that he was a criminal, not by the disclosure of the specific content of the criminal record, and the form and the content of the above provisions of punishment, the "reveal of the content of the investigation data" stipulated in Article 10 Section 1 of the same Act not only refers to an act of specifically revealing the content of the investigation data including the charge, type and amount of sentence, but also to an act of simply revealing that a certain person has a criminal record.

Reference Provisions

1. Article 283 Paragraph 1 of the Criminal Act, Article 286 of the Criminal Act
2. Article 283 Paragraph 1, Article 286 of the Criminal Act
3. Article 20, 283 of the Criminal Act
4. Article 20, 283 of the Criminal Act
5. Article 6 Paragraph 2, Article 10 Paragraph 1 of the former Act on the Lapse of Criminal Sentences (before it was amended to Act Number 7624 on July 29, 2005)

Article 20 (Justifiable Act) of the Criminal Act

An act which is conducted in accordance with Acts and subordinate statutes, or in pursuance of accepted business practices, or other action which does not violate the social rules shall not be punishable.

Article 283 (Intimidation, Intimidation on Lineal Ascendant) of the Criminal Act

(1) A person who intimidates another shall be punished by imprisonment for not more than three years, a fine of not more than five million won, detention or a minor fine. <Amended by Act No. 5057, Dec. 29, 1995>

Article 286 (Attempts) of the former Act on the Lapse of Criminal Sentences

Attempts to commit the crimes of the preceding three Articles shall be punished.

2) Persons who are in charge of administering materials of investigation cards, or refer to criminal records or investigation records based on materials of investigation cards in the course of performing official duty shall not disclose the contents thereof. <Newly Inserted by Act No. 4569, Aug. 5, 1993; Act No. 6747, Dec. 5, 2002>

Article 10 (Penal Provisions) of the former Act on the Lapse of Criminal Sentences

(1) Persons who respond to queries regarding or disclose the contents of materials of investigation cards in violation of the provisions of Article 6 (1) or (2) shall be sentenced to imprisonment for not more than 3 years or a fine not exceeding thirty million won. <Amended by Act No. 6747, Dec. 5, 2002>

• Defendant: Defendant

• Appellant: Defendant

• Counsel: Attorney Kim, Byung-ik

• Court of Second Instance: Daegu District Court Judgment 2006No2627 delivered on December 28, 2006

Disposition

The appeal shall be dismissed.

Reasoning

This is to judge the Reasons for Appeal.

1. On the Reasons for Appeal about the crime of intimidation

A. About the argument about the violation of the rule of evidence selection

According to the reasoning in the decision by the court below and the evidence selected by the first court and cited by the court below, in the situation where the victim is pressed for payment of the money received from a person who is not a party in this case under the pretext of promoting the establishment of a college and of pre-selling the residential and commercial areas in the site, the court below judged that the defendant who is a police officer belonging to the Information Security Department of the (Name withheld) Police Department called the victim on May 30, 2003 at around 12:30 to say, "I am the detective working for the Information Security Department of the (Name withheld) Police Department. The person who is not a party in this case is my relative. When are you going to pay back the money? If you do not do so quickly I will report it to the upper department and raise an issue" thereby disclosing a malicious intent, which is justifiable and is not in violation of the law through the violation of the rule of evidence selection as argued in the Reasons for Appeal.

B. On the argument about the requirements for a crime of intimidation to be constituted

Intimidation in the crime of intimidation refers to disclosing a malicious intent, to a degree to cause fear to an ordinary person, and the intent as the subjective requirement has the content of the actor's awareness and citing of the disclosing the malicious intent, (refer to Supreme Court Decisions 90Do2120 delivered on May 10, 1991, 2006Do2311 delivered on June 15, 2006), so for a crime of intimidation to be constituted, the content of the disclosed malicious intent has to be enough to cause fear to an ordinary person, considering the personality of the actor and the other party, surrounding situations at time of disclosure, degree of friendliness between the actor and the other party, and in case the malicious intent was disclosed by a third party, the relationship implied between the third party and the actor, but that does not mean that the other party is required to realistically feel fear, and as long as the other party is aware of the meaning of the disclosure of such malicious intent, the constituent of a crime of intimidation is met, regardless of whether the other party realistically felt fearful or not.

The Criminal Act, in Article 286, has a provision to punish a person who attempts to commit a crime of intimidation, but that does not mean that the person shall always be interpreted as a criminal of invasion, and considering the fact that it is realistically impossible to objectively deliberate and judge the other party's emotional response that is extremely subjective, complex and often subconscious, and even if the other party expresses his emotional response or the state of emotion in the past, the criteria to judge whether the fear was generated or not differs depending on people, and there is no objective measure for the degree, it is not appropriate to determine a consummated crime according to whether the other party realistically felt fearful or not.

Ultimately, a crime of intimidation shall be deemed to be a crime of danger whose protected legal interest is the freedom to make decisions, and the above provision to punish attempts shall only apply to cases where the disclosure of the malicious intent did not reach the other party, or it was not perceived by the other party though it reached him, or the other party did not recognize the meaning of the disclosed malicious intent.

According to the above legal reasoning, in the above situation, the defendant mentioned raising an issue and his status as a police officer working in the Information Department unless a quick repayment is made, shall amount to the disclosure of a malicious intent enough to cause fear to an ordinary person, so as long as the victim obviously recognized its purport, it reached the consummation of a crime of intimidation regardless of whether the victim realistically felt fearful or not.

The decision by the court below with the same purport is justifiable and is not in violation of the law through misunderstanding legal reasoning about the requirements to constitute a crime of intimidation.

C. On the argument about a justifiable act

If a disclosure was made about a malicious intent as part of the exercise of the right or work performance, a crime of intimidation is not constituted if the disclosure does not go against social norms as a justifiable exercise of the right or work performance, but even if it might seem to be a justifiable exercise of the right or work performance, if it is an abuse of a right or job authority and goes against social norms, a crime of intimidation is constituted, and more specifically, if the disclosure was a means for a justifiable purpose, illegality shall be formed, otherwise the illegality shall not be formed.

According to the reasoning in the decision by the court below, the defendant met with the person who is not a party in this case who was worried about the money that the victims was not repaying, listened to the explanation by the person who is not a party in this case about his situation, called the victim right away, identified himself as a detective at the Information Department, lied that the person who is not a party in this case was his relative, told him that he would raise an issue unless the money is not quickly paid to the person who is not a party in this case, and at that time the defendant was not officially investigating the case of the monetary transaction between the victim and the person who is not a party in this case and it was before he became suspicious about the charge of the crime.

According to the above, first of all, the content of the malicious intent that the defendant disclosed to the victim was with the purport that he could raise an issue by reporting it to his organization, so on the surface, it is nothing more than an expression of the intention of a job performance, and the purpose of it also seems to be in a quick repayment or compensation for damages from the victim to the person who is not a party in this case which shall not be deemed illegal or unjustifiable, but Article 10 of the Regulations for Police Officers Work (Prohibition to unjustly involve in a civil dispute) stipulates, "a police officer shall not involve in a third party’s civil dispute unjustly using his status or authority," and also considering the situation where the suspicion about the crime by the victim was not revealed yet, the disclosure of the malicious intent that he had the intention to perform work based upon the victim’s repayment to the person who is not a party in this case or a compensation for damages, shall not be deemed part of justifiable work performance or a significant means to achieve the goals.

Therefore, as the above disclosure of a malicious intent shall not be deemed an act that does not go against social norms or as an justifiable act as a police officer, the decision by the court below with the same purport is justifiable and is not in violation of the law through misunderstanding legal reasoning about the justifiable acts.

2. On the Reasons for Appeal about a crime to violate law on the lapse of Criminal Sentences

Article 6 Section 2 of the former Act on the Lapse of Criminal Sentences (before it was amended to Act Number 7624 on July 29, 2005) stipulates, "a person who manages investigation data or a person who checks criminal records or investigation records using the investigation data shall not reveal the content of the investigation data," and punishes any person who reveals the content of the investigation data in Article 10 Section 1, considering the fact that the purpose of the above Act is to determine criteria on the management of criminal records and investigation data as well as the lapse of criminal sentences to guarantee a criminal's normal return to society, and the fact that a criminal has great trouble with normal return to society only with the disclosure of the fact that he was a criminal, not by the disclosure of the specific content of the criminal record, and the form and the content of the above provisions of punishment, the "reveal of the content of the investigation data" stipulated in Article 10 Section 1 of the same Act not only refers to an act of specifically revealing the content of the investigation data including the charge, type and amount of sentence, but also to an act of simply revealing that a certain person has a criminal record.

Then the act of the defendant who checked the victim's criminal record on the investigation data at the (Name withheld) Police Department and said to former and incumbent public officials of the Goryeong County in the north Gyeongsang Province that the victim has a criminal record shall be deemed to fall under the "reveal of the content of the investigation data" and considering the motive, content of the act and status of the defendant and other circumstances stipulated in the decision by the court below, the purposefulness of the defendant shall also be recognized, so the decision by the court below with the same purport is justifiable and is not in violation of the law through misunderstanding legal reasoning about the requirements to constitute a crime of violation in Article 10 Section 1 of the same Act or the violation of the rule of evidence selection as argued in the Reasons for Appeal.

3. Conclusion

Wherefore, the appeal shall be dismissed and this decision is delivered as stipulated in the disposition with the assent of the Justices involved excluding the opposing opinion by Supreme Court Justice Kim Young Ran and Supreme Court Justice Park Il Hwan about the constituents of a crime of intimidation.

4. The opposing opinion by Supreme Court Justice Kim Young Ran and Supreme Court Justice Park Il Hwan is as follows.

A. The majority opinion judges, a crime of intimidation shall be deemed to be a crime of danger whose protected legal interest is the freedom to make decisions, and the above provision to punish attempts shall apply to cases where the disclosure of the malicious intent was not perceived by the other party regardless of whether the other party felt fearful or not.

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

(1) In the former Criminal Act (before our Criminal Act was enacted on September 18, 1953), the German Criminal Act and the Japanese Criminal Act that do not have provisions to punish persons who attempt to commit a crime of intimidation, there might be room to have the position like the majority opinion about the time of consummation of a crime of intimidation, considering the need to punish the act of intimidation even if the victim does not feel fearful.

However, the current Criminal Act has provisions to punish persons who attempt to commit a crime of intimidation, whose purport is to consider a crime of intimidation as a crime of invasion, so if the other party does not feel fearful even though he recognizes the meaning of the malicious intention, the act shall be punished as an attempt to commit a crime of intimidation, to seek an adequate amount of sentence considering the degree of damages on the victim.

Unless it is natural, whether to view a crime, a crime of danger or a crime of invasion shall be an issue of interpreting the Positive Law.

A crime of intimidation is a crime that is constituted by an act of disclosing a malicious intent that could generate fear in the other party, and although it cannot be confirmed that it is a crime of danger or a crime of invasion, but considering the ordinary social norm, if it did not generate fear in the other party, it shall be understood as an attempt, which has two aspects of an attempt that did not start where the constituting act was not completed and an attempt that did not get implemented where the constituting act was completed but the result did not happen, and the case in this case where the fear was not generated in the other party is a typical attempt that did not get implemented.

It is true, that in the days of the former Criminal Act, as there were no provisions to punish attempts, there was room to interpret it as a crime of danger considering the need to punish, but under the current Criminal Act, there is no need to interpret as such. Even in theory, the majority is that a crime of intimidation shall be interpreted as a crime of invasion under the current Criminal Act, which is natural considering the general property of a crime of attempt.

(2) The majority opinion, states that the criteria to judge whether the fear was generated or not differs depending on people, and there is no objective measure for the degree, it is not appropriate to determine a consummated crime according to whether the other party realistically felt fearful or not.

However, the disclosure of a malicious intent in a crime of intimidation refers to the disclosure of a malicious intent that can "cause fear to an ordinary person," so in judging if the constituents of a crime of intimidation exist or not, it would be sufficient to see if there was a disclosure of a malicious intent, but in judging if a crime of intimidation reached the consummation or not, whether the other party felt fearful, in other word, the freedom to make decisions were invaded or not, shall be considered.

In addition, even though different people have different threshold to fear and the degree of the fear, that is not sufficient to confirm whether the person felt fearful or that there is no objective measure for the degree, it is not appropriate to determine a consummated crime, and the objective measure to determine whether a person felt fearful or not shall be proved by the compilation of the testimonies by the prosecutor or the defendant on a case by case basis as well as specific situations, and if it is proved that the act of intimidation caused fear in the other party, it shall be recognized that the crime of intimidation has consummated, otherwise it shall be recognized that the crime of intimidation stopped as an attempt, which shall not be deemed inappropriate.

The legal principle, "when in doubt, for the benefit of the defendant" shall apply to a case like this, and if there is doubt whether the consummation was reached, it can be punished as an attempt, and punishing all case as consummation because it is hard to resolve the doubts go against the general principle of the Criminal Act and shall cause concerns about excessive punishment.

(3) Then, under the current Criminal Act, a crime of intimidation is a crime of invasion, and reaches consummation when a disclosure of a malicious intent reaches the other party to a degree to cause fear, when the other party recognizes the meaning and feel fearful, and the existing Supreme Court precedents do not seem to obviously go against such opinion on the time of consummation of a crime of intimidation.

(4) According to the above legal reasoning and the record, the victim never stated at an investigative organization that he felt fearful and rather testified that he never was fearful in the court below, and as there is no evidence to deem that the victim felt fearful due to the defendant's act of intimidation, the crime of intimidation in this case shall be deemed to be an attempt, and the decision by the court below that judged that the crime of intimidation in this case reached consummation is in violation of the law that affected the decision due to misunderstanding of legal reasoning about the consummation of a crime of intimidation.

C. Wherefore, the decision by the court below shall be reversed due to such illegality, but as the majority opinion has a different conclusion, the opposing opinion has been expressed as above.

Source

• Supreme Court Decision 2007Do606 Delivered on September 28, 2007, Supreme Court Library of Korea