헌법상 기본권으로서 표현의 자유와 형법상 업무방해죄 해석의 한계 - 대법원 2025. 4. 15. 선고 2024도16921 판결

초록

Article 314 of the Korean Criminal Act punishes Interference with Business by ‘force’. The Supreme Court has broadly defined ‘force’ as any power capable of suppressing or confusing a person’s free will, regardless of whether it is physical or non-physical, and without requiring actual suppression. Such an expansive interpretation risks encompassing even minor physical acts occurring in assemblies or demonstrations protected by the constitutional Freedom of Expression. The decision under review held that acts involving limited physical force by civic activists opposing defense industry policies should be interpreted restrictively in light of Freedom of Expression. While the conclusion is appropriate, the Supreme Court failed to clarify how constitutional rights concretely affect the interpretation of criminal offense elements. Historically, Interference of Business originated in the old Japanese Criminal Code and functioned as a tool to suppress assemblies and demonstrations, yet it was incorporated into Korean Criminal Act without sufficient critical reflection. Unlike Korea and Japan, jurisdictions such as Germany and France regulate similar conduct through specific offenses. Nevertheless, the Interference with Business continues to be broadly applied in practice. Given that Freedom of Expression occupies a preferred position among fundamental rights, a restrictive interpretation of ‘force’ is required where the conduct falls within the sphere of fundamental rights. In this case, the defendants’ acts constituted the exercise of Freedom of Expression in the public sphere, while the protected interest was merely the freedom to conduct a defense-related exhibition. Accordingly, the concept of “force” should be narrowly construed. Furthermore, considering the existence of more specific offenses such as Coercion, Assault, and Property Damage, the Interference with Business by force calls for legislative reconsideration, or at least a more restrictive interpretation in cases involving fundamental rights.

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