Open Decision Ledger · Criminal law
One-off banners stating an opposing stance as protected work
Supreme Court, Sept. 11, 2025, 2022Do1665 (judgment)
Case name: 업무방해·재물손괴[업무방해죄의 보호대상이 되는 ‘업무’의 의미와 범위가 문제된 사건]
Official text on the National Law Information Center
Question
When the chairman of a redevelopment promotion committee cuts down banners that the chairman of a landowners' association installed to convey his association's stance, does that obstruct work protected by Article 314(1) of the Criminal Act, and when may a one-off installation of banners conveying facts or opinions count as such protected work?
Holding
Work protected by the offence of obstructing business means affairs or a business continuously pursued on the basis of one's position in an occupation or social life. A one-off or temporary installation of banners conveying facts or opinions, as a mere element of expression not based on such a position, is not protected work; where it forms part of the original performance of work that has continuity, or is carried out closely and inseparably connected to that performance, it may be, judged on a weighing of the circumstances. Because punishing conduct that merely hinders the display of one's own opinion or an opposing stance in an adversarial relationship must be done with caution, the banners here were not protected work, so the defendant's conduct did not obstruct the victim's work.
Summary of the holding, verbatim
형법상 업무방해죄의 보호대상이 되는 ‘업무’란 직업 또는 사회생활상의 지위에 기하여 계속적으로 종사하는 사무나 사업을 말한다.
Unofficial English translation
'Work' that constitutes the object of protection of the offense of obstruction of business under the Criminal Act means affairs or business in which one continuously engages by virtue of one's occupational or social position.
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울남부지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed and the case is remanded to the Seoul Southern District Court.
Form of the test
Circumstances weighed Stated in the decision
본래의 업무의 종류와 성격, 현수막 등의 설치 시기와 장소, 경위와 목적, 현수막 등에 기재된 내용과 방해된 업무 사이의 관련성 등 여러 사정을 종합적으로 고려하여 판단하여야 한다.
Unofficial English translation
It must be determined by comprehensively considering various circumstances, such as the type and nature of the original work, the timing and location of the installation of banners, etc., the circumstances and purpose, and the relevance between the content stated in the banners, etc. and the work that was obstructed.
Factors
- 본래의 업무의 종류와 성격
- 현수막 등의 설치 시기와 장소
- 경위와 목적
- 현수막 등에 기재된 내용과 방해된 업무 사이의 관련성
- 서로 대립하는 관계에서 단순히 자신의 의견을 개진하거나 상대방에 대한 반대 입장을 표시하는 것을 방해하는 행위에 대하여
Unofficial English translation
• The type and nature of the original work
• The timing and location of the installation of banners, etc.
• The circumstances and purpose
• The relevance between the content stated in the banners, etc. and the work that was obstructed
• With respect to an act of interfering with the mere expression of one's own opinion or indication of an opposing position against the other party in a relationship of mutual opposition
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2005. 4. 15. 선고 2004도8701 판결(공2005상, 797)
Unofficial English translation
Supreme Court Decision 2004Do8701 decided April 15, 2005 (Gong 2005 Sang, 797)
Decisions referred to
대법원 2005. 4. 15. 선고 2004도8701 판결(공2005상, 797), 대법원 2009. 11. 19. 선고 2009도4166 전원합의체 판결(공2009하, 2123), 대법원 2013. 6. 14. 선고 2013도3829 판결(공2013하, 1286), 대법원 2017. 11. 9. 선고 2014도3270 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If a banner carries both a statement of the association's own plans and a call not to attend the meeting, can its one-off installation still be part of the original work with continuity?
The remand judgment of the Seoul Southern District Court, which must re-hear the whole case, including both the obstruction and property damage charges, on the standard set here, will show how the weighing of the circumstances works in practice. A later decision clarifying how close the connection to the original work must be, or an amendment to Article 314(1) of the Criminal Act, would call for this entry to be read again.
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Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul Southern District Court, in its judgment of 20 January 2022 (2020No2818), held that the victim's work of promoting the landowners' association's stance through the banners he posted while running the association was work protected by the offence of obstructing business, and that the defendant, using force, had obstructed that work. For the reasons it stated, it also found the defendant guilty of the property damage part of the indictment.
Supreme Court standard: The Supreme Court held that the banners did not convey the association's original work such as its composition, operation, activities or the urban environmental maintenance project plan, and that the victim had merely installed them one off, timed to the residents' meeting, as a means of opposing the promotion committee and urging owners not to attend. That was neither continuous work based on his position nor closely and inseparably connected to the work of the association's president, and the freedom to express any stance through an association one has oneself formed is abstract and conceptual, not concrete and continuous affairs. It found the obstruction conviction tainted by a misapprehension of the law on protected work, but on the property damage part it found no error in the evidence adopted or in the law on self-defence and lawful acts. Because the court below had treated the two parts as concurrence offences under the first clause of Article 37 of the Criminal Act and imposed one sentence, it reversed the whole judgment and remanded.
Distinguishing conditions
- Banners whose content states the association's own work, such as its composition, operation, activities or project plans, and which are put up as part of that work with continuity.
- A one-off installation carried out closely and inseparably connected to the original performance of work, since the Court accepted that such an installation may be protected work.
- A charge of obstructing work aimed at a person's social or economic activity rather than at the display of an opposing stance in an adversarial relationship.
Record verification notes
Set the wording of the banner against the association's own original work first, then against the timing, place, circumstances and purpose of the installation, since the Court weighed all of these. On the property damage charge, examine the record against the relevant legal principles and the lawfully adopted evidence: the court below made no failure to deliberate as needed, no violation of the rules of logic and experience or departure from the limits of free evaluation of evidence, and no misapprehension of self-defence or lawful acts. Note also that no acquittal on the obstruction charge was entered, and that the whole judgment fell only for the concurrence treatment under the first clause of Article 37 of the Criminal Act.
From the official text
Points at issue
형법상 업무방해죄의 보호대상이 되는 ‘업무’의 의미 / 현수막 등을 설치하여 어떠한 사실이나 의견 등을 알리는 것이 업무방해죄에 의하여 보호되는 ‘업무’에 해당할 수 있는 경우 및 이에 해당하는지 판단하는 기준 / 서로 대립하는 관계에서 단순히 자신의 의견을 개진하거나 상대방에 대한 반대 입장을 표시하는 것을 방해하는 행위를 형법상 업무방해죄로 처벌하는 것은 신중하게 이루어져야 하는지 여부(적극)
Unofficial English translation
Meaning of 'Work' that constitutes the object of protection of the offense of obstruction of business under the Criminal Act / Cases in which the installation of banners, etc. to announce certain facts or opinions may constitute 'Work' protected by the offense of obstruction of business, and the criteria for determining whether it so constitutes / Whether punishing, as the offense of obstruction of business under the Criminal Act, an act of interfering with the mere expression of one's own opinion or indication of an opposing position against the other party in a relationship of mutual opposition must be done cautiously (affirmative)
Summary of the holding
형법상 업무방해죄의 보호대상이 되는 ‘업무’란 직업 또는 사회생활상의 지위에 기하여 계속적으로 종사하는 사무나 사업을 말한다. 직업이나 사회생활상의 지위에 기한 것이라고 보기 어려운 단순한 의사표현의 일환으로서 일회적 또는 일시적으로 현수막 등을 설치하여 어떠한 사실이나 의견 등을 알리는 것은 업무방해죄의 보호대상인 ‘업무’라고 할 수 없다. 현수막 등을 설치하여 어떠한 사실이나 의견 등을 알리는 것이 일회적 또는 일시적인 사무라 하더라도 그것이 계속성을 갖는 본래의 업무수행의 일환으로서 또는 본래의 업무수행과 밀접불가분의 관계에서 행하여지는 것이라면 업무방해죄에 의하여 보호되는 ‘업무’에 해당할 수는 있다. 그러나 그러한 업무에 해당하는지는 본래의 업무의 종류와 성격, 현수막 등의 설치 시기와 장소, 경위와 목적, 현수막 등에 기재된 내용과 방해된 업무 사이의 관련성 등 여러 사정을 종합적으로 고려하여 판단하여야 한다. 특히 업무방해죄의 보호법익은 업무를 통한 사람의 사회적·경제적 활동을 보호하려는 데 있으므로, 서로 대립하는 관계에서 단순히 자신의 의견을 개진하거나 상대방에 대한 반대 입장을 표시하는 것을 방해하는 행위에 대하여 형법상 업무방해죄로 처벌하는 것은 신중하게 이루어져야 한다.
Order
원심판결을 파기하고, 사건을 서울남부지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed and the case is remanded to the Seoul Southern District Court.
Provisions referred to
형법 제314조 제1항
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