[Defendants] Defendant 1 and 1 other
[Appellants] Defendants
[Defense Counsel] Attorney Hwang Se-hun and 1 other
[Judgment Below] Seoul Central District Court Judgment 2020No3067, dated July 7, 2022
[Order]
The judgment below is reversed, and the case is remanded to the Seoul Central District Court.
[Reasoning] The grounds of appeal are examined.
1. Relevant Legal Principles
A. In the crime of intimidation (협박죄), "intimidation" generally means notifying a person of harm sufficient to instill fear in an ordinary person, and the criminal intent as a subjective element of the offense consists of the actor's awareness and acceptance that he or she is notifying harm of such a degree. For the crime of intimidation to be established, the content of the harm notified must be sufficient, in general, to instill fear in an ordinary person, taking into account all the circumstances before and after the act, including the disposition of the actor and the counterpart, the surrounding circumstances at the time of the notification, the degree of familiarity between the actor and the counterpart, and their mutual relationship such as status (see Supreme Court en banc Decision 2007Do606, decided September 28, 2007, etc.).
B. Even where a certain harm is notified to the counterpart as part of the exercise of a right, the crime of intimidation is not established if the notification of such harm does not violate social norms, such as where it is tolerable under generally accepted social customs or ethical notions, or where it constitutes a reasonable means for a legitimate purpose. (see Supreme Court Decision 98Do70, decided March 10, 1998; Supreme Court Decision 2011Do639, decided July 14, 2011, etc.) Accordingly, in determining whether the notification of disadvantage or harm to the counterpart, made in the course of realizing or exercising rights between parties with conflicting interests under a civil legal relationship, constitutes "intimidation" under the crime of intimidation in the sense of being generally capable of instilling fear, and whether it exceeds the degree tolerable in light of social norms, one must carefully examine various circumstances, such as the relationship between the actor and the counterpart and the difference in their socioeconomic status, whether the content of the disadvantage or harm notified, in light of the circumstances at the time, reached a degree significantly beyond the scope that could ordinarily be anticipated or accepted as content of the realization or exercise of rights by parties with conflicting interests, and whether there exists a reasonable connection between the method of notifying the harm and the purpose pursued thereby.
2. Determination
A. According to the reasoning of the judgment below and the evidence lawfully adopted by the court below, the following circumstances can be identified.
1) In a situation where the management of the company at issue was a cause for concern due to poor financial conditions, including delayed wages for employees including the Defendants and inability to pay office rent, and where the management capability of the victim, who was the representative director and largest shareholder, was under suspicion, the Defendants, who were directly interested parties, met with the victim on November 23, 2015, together with fellow employees, and merely delivered a "resignation proposal" without saying anything further, and the victim, after reading it for about 5 minutes, left the scene immediately.
2) The "resignation proposal" is the final compilation of the results of discussions and sharing with two institutions that were major investors in the company at issue, made with the consent of all employees who decided to remain in the company hoping for its rehabilitation despite the management crisis.
3) The core of the "resignation proposal" is that, in exchange for the victim resigning as representative director and giving up all shares in the company at issue except for 10%, the legal liability borne by the victim in connection with the company's business, such as unpaid wages and severance pay, would be entirely waived. On the other hand, the proposal also stated that if the victim rejected the "resignation proposal," ㉮ the employees whose wages were unpaid would report the matter to the relevant authorities, ㉯ this fact would be notified to the two institutions that were the major investors in the company at issue, ㉰ in that case, the two institutions would file lawsuits against the victim to recover their claims, resulting in prolonged legal disputes, and ㉱ as a result, the company at issue could also be classified as a failed enterprise and be liquidated.
B. Examining these circumstances in light of the legal principles set forth above and the record, it is reasonable to conclude, for the following reasons, that the Defendants' act of delivering the "resignation proposal," as stated in the facts charged in this case, cannot be regarded as "intimidation" under the crime of intimidation, and that even if it constitutes "intimidation," it is tolerable under generally accepted social norms or constitutes a reasonable means for the legitimate purpose of normalizing the management of the company at issue, and thus does not violate social norms.
1) In a situation where the survival of the company at issue was jeopardized due to wage arrears, unpaid office rent, and other issues arising from the management failure of the victim, who was the representative director, it can largely be viewed that the preparation of the "resignation proposal" by the employees, including the Defendants, who ultimately remained with the company at issue, together with major investors facing the risk of losing their invested funds, after sharing such circumstances under a mutual common interest, was part of a voluntary and collective effort by major stakeholders of the company at issue to devise measures for normalizing its management. Therefore, this cannot be readily concluded to be an act in violation of law or an unjust act.
2) In particular, the Defendants, who were employees with unpaid wages, proposed through the "resignation proposal" to waive the victim's legal liability related to wage payment, thereby devising and presenting a plan for the rehabilitation of the company at issue even while accepting the disadvantage and sacrifice of increased uncertainty regarding the recoverability of their wage claims and the possibility of effectively not being paid at all if the company at issue failed to normalize. Thus, it cannot be said that the proposal demanded sacrifice solely from the victim or unilaterally imposed only disadvantageous terms on the victim, nor does it appear to have been pursued for any private purpose or interest other than the realization and securing of legitimate rights.
3) The reporting of unpaid wages contemplated in the event the "resignation proposal" was rejected constitutes a legitimate exercise of rights by the relevant employees under the law (item ㉮ above), and notifying such circumstances to the two institutions that were major investors is merely a naturally anticipated procedure of informing other stakeholders, with whom relevant information had been shared or consultations had taken place in the process of preparing the "resignation proposal," of the progress of the negotiations, such as whether the victim accepted the proposal, as fellow stakeholders with a common interest (item ㉯ above); and the remaining matters are merely subjective predictions or forecasts, or simple warnings, regarding negative situations or consequences that anyone could anticipate would arise in the future following the breakdown of negotiations, and cannot be evaluated as an act of causing a third party to inflict harm (items ㉰ and ㉱ above).
4) The victim, as representative director and largest shareholder holding the initiative for normalizing the management of the company at issue, possessed broad discretion and authority to accept or reject the "resignation proposal," as well as to attempt further negotiations such as a modified proposal, and given that the management situation was continuously deteriorating as described above, it was fully foreseeable that the employees and major investors, acting in concert to protect their own civil rights, would take proposals or measures aimed at pressuring the victim. Therefore, it is difficult to conclude that the act of delivering the "resignation proposal," in light of the circumstances at the time, reached a degree significantly beyond the scope that the victim could ordinarily accept as content of the realization or exercise of rights by the Defendants and the major investors, who had conflicting interests with the victim.
C. Nevertheless, the court below determined that the Defendants' act constituted the crime of intimidation based solely on the circumstances stated in its reasoning. Such determination by the court below contains an error that misapprehended the legal principles concerning the establishment of the crime of intimidation, thereby affecting the judgment.
3. Conclusion
Therefore, the judgment below is reversed, and the case is remanded to the court below for further examination and determination, and it is so decided by the unanimous opinion of the Justices participating in the judgment, as stated in the Order.
Justice Min You-sook (Presiding Justice), Cho Jae-yeon, Lee Dong-won, Cheon Dae-yeop (Justice in charge)