논문 상세보기
협박의 의미와 대상 KCI 등재
The Subject of Harm Threatened and The Content of Threat
This article is a critical review on a case, Supreme Court Decision 2010Do1017 delivered on 2010. 7. 15. In the present case, the intimidated person neither felt fear nor was the subject of the harm threatened. Defendant threatened a person with a notice of harm that he would harm the legal interest of a corporation operated by the intimidated person. Supreme Court held that although the object of intimidation was not the subject of harm threatened, the behavior of defendant constitutes a crime of intimidation on the ground that a corporation can be a subject of harm threatened. Article 283 (1) of Criminal Law stipulates that the meaning of intimidation is “to threat a person” but it remains silent in the meaning and types of legal interest. This is why the concept of intimidation remains in the arena of interpretation. In order to interpret the meaning and the content of intimidation reasonably, it is essential to conduct comparative research on constituent elements of the crime of intimidation, as conducted in this study with provisions of Germany, Switzerland, Austria and Japan. In the case of Korean Criminal law, not surprisingly, a third party including family members of intimidated person can be a subject of harm notified as there is no provision applicable to a situation in which the object of intimidation is not a subject of harm threatened. However, the object of intimidation should be in ‘close relationship’ with the subject of harm threatened. Especially, for a corporation to be an subject of harm threatened, the content of intimidation should be interpreted narrowly, when considering the legislative examples of countries aforementioned which confine the scope of subject of harm threatened. It is thought to be unreasonable to expand the scope of punishment on the crime of intimidation by interpreting the provision to provide no limitation on the content of harm notified. In the present case, intimidated person did not feel fear because the subject of harm threatened was not himself, but his corporation. Even from the standpoint that crime of intimidation is a crime of danger, it is unreasonable to disregard the statement of the victim made in court in judging harmfulness of the notice. Moreover, considering the content of the notice which contained a threat that defendant would accuse the corporation of its illegal practice to the supervising department, Court should have been more cautious in its holdings on the consummation of the crime of intimidation.
[공소사실]
[원심판결] (인천지방법원 2009. 1. 30. 선고 2007고단3021 판결)
[판결요지] (대법원 2010. 7. 15. 선고 2010도1017 판결)
[판례평석]
Ⅰ. 문제제기
Ⅱ. 협박죄의 구성요건에 관한 비교법적 고찰
Ⅲ. 협박의 의미
Ⅳ. 협박의 대상
Ⅴ. 결론
[참고문헌]
[Abstract]
