Obstruction)

Housing Yangsan City

[Defendant, Appellant], Ba*, Ma**

【Criminal Power】

On November 9, 2016, the Defendant was sentenced to one year and two months of imprisonment for the crime of aiding and abetting fraud at the District Court for the Defendant’s District Court, and was released on May 2, 2017 in a medical prison on parole on the execution of the sentence, and the parole period expired on July 14, 2017.

【Criminal Facts】

피고인은 2019. 7. 25. 1:10경 양산시 물금읍 부산대학로 49에 있는 무인비행기 시험장 앞 도로에서 제네시스 ##@####호 승용차를 운전하여 가던 중, 음주운전 단속 근무 중인 양산경찰서 교통관리계 소속 순경 피해자 서피해(가명, 34세)가 경광봉을 흔들며 정지 지시를 요구하는 것을 발견하고, 음주운전 단속을 모면하기 위하여 위 승용차를 가속하여 단속 지점을 그대로 통과하다가 위 승용차의 좌측 필러 부분으로 서피해의 왼쪽 팔목 부위를 충격하였다.

Accordingly, the defendant carried dangerous objects and interfered with the legitimate execution of duties of police officers concerning the crackdown on drinking driving.

Summary of Evidence

(Omission)

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 144(1) and 136(1) of the Criminal Act

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. In think of the intention to avoid the crackdown on drunk driving, it is merely an escape and merely merely does not constitute an act of assault against the victim who is a public official, and does not constitute an act of assault. In addition, it was impossible to expect that the escape victim will be shocked in the future in the course of the vehicle.

B. The injured party’s injury is merely a mere to the extent that it does not interfere with daily life and does not constitute a crime of harming the performance of special public service.

2. Determination

A. Whether the crime of obstruction of performance of special duties is established

1) The intent of the crime of obstruction of performance of official duties is to recognize the fact that the other party is a public official performing official duties, and that the other party assaults or intimidates him.

In addition, the perception is deemed to have so-called willful negligence even if it is uncertain, and if it is not necessary to obstruct the execution of duties, and if the defendant does not confession, the criminal intent is to prove it by the method of proving indirect facts having considerable relevance with the intention given the nature of the object. In this case, what constitutes indirect facts having considerable relation with the intention should be reasonably determined based on normal empirical rule (see, e.g., Supreme Court Decision 94Do1949, Jan. 24, 195).

2) Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and investigated by the court, it is reasonable to deem that there was an intentional act of assaulting a police officer performing official duties against the defendant at the time of the instant case. The Defendant and the defense counsel’s allegation in this part is

① At the time of the instant case, the victim worn a traffic driver’s uniform and a driver’s appearance to control drinking, and around the fourth-lane control point, the sign board and the safety warning lights, and the one-lane container 4 and 5 are placed one-way between each lane, and the two patrol vehicles and one-way traffic survey vehicle were stopped on the right side of the Defendant’s vehicle and the other four-lane.

② At the time of the instant case, the Defendant: (a) placed on the two-lane line of the four-lanes in letter to regulate drinking driving; and (b) placed on the left-hand side a stop order by shaking light seals.

③ As long as the Defendant does not leave the contact and the victim from one lane to one lane, the Defendant did not turn the contact and the victim from the point of control to one lane, the Defendant did not take any other right-hand than rapid passing of the two lanes, which are the running lane.

④ Accordingly, in order to escape from damage, the Defendant: (a) carried the victim’s vehicle in front of the victim’s right-hand side, carried the vehicle in front of the victim’s right-hand side, speeded rapidly, passed the control point; and (b) shocked the victim’s left part of the vehicle.

(5) Police officers and patrolmen of the defendant shocking victims and passing through the control point as he/she is, and police officers.

The security guards (tentative name) sound a siren, stop a stop and string the patrol vehicle. However, the defendant escaped at a rapid speed of at least 100 km a speed of 100 km a speed, had the signal violated and rapidly changed the lane, and the vehicle was immediately set up on the alley, and the vehicle escaped again from the vehicle.

(6) Landscapes are normally conducted to block a vehicle by scing light bars in the course of drinking control, and as long as the defendant faces some of the body of the victim due to the failure of the victim to avoid driving at a vehicle when the speed of the vehicle passes by, the defendant cannot be said to have no predictability about the shock of the victim.

7) In light of the victim’s distance between the Defendant and the victim’s vehicle, drinking control situation, vehicle’s direction and speed, escape circumstance, etc., it is reasonable to deem that the Defendant had an in-depth intention to recognize the victim’s arms under control, at least, that there was an in-depth intention which permits the occurrence of such a result, i.e., an in-depth intention which allows the victim’s arms under control.

(b) Whether the case constitutes injury;

1) In the crime of injury resulting from a obstruction of performance of official duties, the injury refers to the alteration of the victim’s physical health condition and the occurrence of a disturbance to his/her living function. If the injured party’s wife is extremely minor and does not need treatment, and if the injured party’s body does not undergo treatment, and the injured party’s daily life can be naturally cured upon the passage of the time, then it cannot be deemed that the injured party’s physical health condition was changed, or that his/her life function was hindered, and thus, it does not constitute an injury to the crime of injury resulting from a obstruction of official duties (see, e.g., Supreme Court Decisions 2003Do2313, Jul. 11, 2003; 9Do3910, Feb. 25, 2000).

2) 살피건대, 증인 서피해의 법정진술, 서피해에 대한 경찰 진술조서, 진단서에 의하면, 피고인이 판시와 같이 승용차를 운행하면서 승용차의 좌측 필러 부분으로 피해자의 왼쪽 팔목 부위를 충격하여 손목 부위에 통증을 야기한 사실, ♨♨한의원 담당의사는 위 상처가 2주간의 치료를 요하는 손목의 상세불명 부분의 염좌 및 긴장에 해당한다는 소견을 보인 바 있는 사실은 인정되나, ① 피해자의 위 손목의 염좌 및 긴장은 피해자의 통증 호소에 따른 한의학적 소견이고, 달리 엑스레이 촬영 등 별도의 검사를 받지는 않은 점, ② 피해자는 진단서 발급 당일 위 한의원에서 침구치료 및 물리치료를 받고 1, 2회 더 치료를 받은 외에 별다른 치료나 약물처방을 받은 것이 없는 점, ③ 피해자는 이 사건 발생 이틀 뒤 정상적으로 음주단속을 나갔는데, 업무를 하는데 큰 불편함을 느끼지 못했고, 평소 하던 운동인 테니스를 치는 등 이 사건 부상으로 인해 일상생활에 지장이 없었던 점 등에 비추어 보면, 피해자가 입은 상처는 일상생활에 지장을 초래하지 않고 그 회복을 위하여 치료행위가 특별히 필요하지 않은 정도로서 특수공무집행방해치상죄에 있어서의 상해에 해당되지 않는다 할 것이다.

1. Reasons for sentencing: Imprisonment with prison labor for a period from one month to seven years;

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Punishment] The obstruction of Performance of Official Duties, 01. [No. 1] The obstruction of performance of official duties/non-performance of official duties

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment of 6 months to 1 year and 6 months;

3. Although the instant sentence order was issued by a police official to shaken a light boom and stop for the purpose of regulating drinking driving, the Defendant’s act of committing the instant crime is sufficient in light of the interview on the left side side of the police official’s vehicle and the danger of interview and danger, etc. of the method of committing the instant crime without being aware of the period of repeated crime, and did not reach an agreement with the victimized police officer.

However, although the Defendant has argued that there was no intention to interfere with the performance of official duties, it appears that the Defendant has recognized and reflected his act itself, and the fact that the victim has not been significantly different, etc. are considered as favorable circumstances. In addition, the Defendant’s age, character and behavior, environment, family relationship, motive and circumstance of the crime, means and consequence of the crime, etc. shall be comprehensively considered, and the punishment as ordered shall be determined by taking into account all the various sentencing conditions as shown in the instant pleadings

The acquittal portion

1. Summary of the facts charged

피고인은 2019. 7. 25. 1:10경 양산시 물금읍 부산대학로 49에 있는 무인비행기 시험장 앞 도로에서 제네시스 ##@####호 승용차를 운전하여 가던 중, 음주운전 단속 근무 중인 양산경찰서 교통관리계 소속 순경 피해자 서피해(34세)이 경광봉을 흔들며 정지 지시를 요구하는 것을 발견하고, 음주운전 단속을 모면하기 위하여 위 승용차를 가속하여 단속 지점을 그대로 통과하다가 위 승용차의 좌측 필러 부분으로 서피해의 왼쪽 팔목 부위를 충격하였다.

As a result, the Defendant carried dangerous articles and interfered with the legitimate performance of duties by police officers concerning the crackdown on drinking driving, and the Defendant inflicted an injury on the victim, such as salt, tension, etc. for about two weeks of medical treatment.

2. Determination

This part of the facts charged constitutes a case where there is no proof of a crime, such as the statement in the paragraph 2-b. Thus, pursuant to the latter part of Article 325 of the Criminal Procedure Act, since it constitutes a case where

Although innocence shall be pronounced, inasmuch as it is found that a crime of obstruction of the performance of official duties is guilty as stated in the judgment within the scope of the facts charged as stated in this part of the charges,

Judges Gindo-young

Judges' Binding