[2] The case affirming the judgment below holding that in case where the execution officer posted the public notice notice of the provisional disposition prohibiting interference with business, and did not perform specific execution acts, the defendant violated the order of omission imposed by the provisional disposition

[2] The case affirming the judgment below which acquitted the defendant of the charges of invalidation of indication in the line of official duty on the ground that in case where the execution officer posted the public notice notice of the provisional disposition prohibiting obstruction of business and did not perform any specific execution act, the defendant violated the order of omission imposed by the above provisional disposition

1. As to the Defendant’s ground of appeal

A. Part on the assertion of mistake of fact

Even if the defendant appealed from the judgment of the court of first instance on the ground of an unreasonable sentencing as well as another ground for appeal, if the court below subsequently withdraws the ground for appeal other than unfair sentencing before the sentence of the judgment of the court of first instance, it cannot be viewed as the ground for appeal that there was an error of mistake of facts or misunderstanding of legal principles against the judgment of the court of first instance (see Supreme Court Decision 2005Do9

According to the records, the defendant appealed against the judgment of the court of first instance, and asserted mistake of facts as well as unreasonable sentencing as the grounds for appeal, and then withdrawn all the grounds for appeal other than unfair sentencing on December 29, 2009 on the first day of the judgment of the court of first instance. According to the above legal principles, the defendant cannot assert as the grounds for appeal that there was an error of misconception of facts, etc. due to incomplete deliberation as to the guilty portion among the judgment of the court of first instance. In addition, in light of the records, the court below's finding the defendant guilty of each crime against the defendant

B. The remainder of the assertion

Article 51 of the Criminal Act, which provides for the conditions of sentencing, is interpreted to be subject to the discretion of the court concerning the determination of punishment widely. Thus, in a case where the court of final appeal rendered a sentence of death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years pursuant to Article 383 subparag. 4 of the Criminal Procedure Act, unless it adjudicates on the grounds of appeal as to the propriety of the determination of punishment, the argument that the fact-finding court mispers the facts on the basis of sentencing or did not properly examine the circumstances which are the conditions of sentencing cannot be a legitimate ground of appeal (see, e.g., Supreme Court Decisions 87Do1410, Jan. 19, 198; 2009Do12627, Feb. 11, 2010). Accordingly, in a case where one year has been imposed against the defendant, the argument that the court below did not mislead or properly examine the basic facts of the determination of punishment in the determination of punishment against the defendant cannot be a legitimate ground of final appeal.

In addition, in this case where a minor punishment is imposed more than ten years of imprisonment, the reason that the amount of punishment is unreasonable is not a legitimate ground for appeal.

2. As to the Prosecutor’s Grounds of Appeal

The crime of invalidation of indication in the line of duty under Article 140(1) of the Criminal Act is established by impairing or concealing, or impairing its utility by other means, a statement that a public official conducted a specific compulsory disposition such as sealing, seizing movable property, possession of real estate in connection with his/her duties. Therefore, if an execution officer publicly announced that a provisional disposition ordering an omission was issued by the court against the respondent, and did not perform a specific enforcement act such as moving the seals or objects to his/her own possession, the mere fact that the respondent violated the order of omission in the above provisional disposition does not constitute an act that undermines the utility of an indication in the line of duty (see Supreme Court Decision 2006Do1819, Dec. 24, 2008).

In light of the circumstances stated in its holding, the court below reversed the judgment of the court of first instance which convicted the Defendant of the charges regarding the invalidation of indication in the line of official duty, and acquitted the Defendant ex officio, on the ground that the Defendant violated the order of omission imposed by the provisional disposition of this case, which was publicly notified by the execution officer, on the ground that the execution officer merely posted the public notice notice of the purpose of the provisional disposition of this case, and

Examining the above legal principles in light of the records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles as to the establishment of a crime of violation of empirical rule

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)