형법 제314조 제1항의 ‘위력’ 해석에 관한 비판적 검토 -죄형법정주의의 명확성원칙 및 헌법합치적 법률해석원칙의 관점에서

Abstract

In logic, if any punishment provision is in violation of the principle of clarity, the judge should not rush into Constitution-conforming interpretation but should instead defer to the Constitutional Court for the adjudication on the unconstitutionality of the provision at dispute. However, in cases where the Constitutional Court has already decided that the relevant punishment provision is not a violation of the principle of clarity, and it is difficult to expect a change of precedent, the judge should fulfill the obligation to guarantee fundamental rights through Constitution-conforming interpretation of statutes. There has been a criticism that the crime of interference with business by the threat of force in Article 314(1) of the Criminal Act violates the principle of clarity. The Constitutional Court of Korea has repeatedly ruled that the interference with business by the threat of force under the Criminal Act does not violate the rule of clarity related to the principle of nulla poena sine lege. Nevertheless, serious doubt that the provision, especially the term “threat of force” violates the principle of clarity still remains. In addition, if the court overlooks the relevance between the act in question in a specific case and fundamental rights and applies the existing standards for determining the “threat of force,” the court, by doing so, may excessively restrict the fundamental rights of the defendant and violate the principle of proportionality. In a case where the above concern arises, a judge should argue in more detail the process of determining the “threat of force” in order to guarantee fundamental rights. In particular, the Supreme Court should resolve legal questions regarding the determination of the fulfillment of the threat of force requirement that arise at lower court levels. If the defendant’s exercise of fundamental rights is likely to constitute a threat of force, the judge should find a boundary where fundamental rights under the Constitution and the legislative purpose of the crime of interference with business by the threat of force can be harmoniously achieved through Constitution-conforming interpretation of statutes by applying the principle of proportionality. It must be ensured that the above punishment provision does not excessively restrict fundamental rights.