The defendant shall be innocent.

A. Defendant

(1) misunderstanding of facts

The victim non-indicted 1 made a statement in front of the watchkeeping room in the investigative agency as to the place where the defendant was assaulted by the defendant, but the court below changed the place of the assault to the front of the spring apartment located adjacent to the Busan Seo-gu Office. However, the witness non-indicted 2, who was the witness of the prosecution, made a statement in front of the Busan Seo-gu office, and it is inconsistent with the victim's statement. In light of the above, the court below found the defendant guilty of the facts charged in this case, which affected the conclusion of the judgment.

(2) Unreasonable sentencing

In light of the fact that the Defendant suffered injury from the victim and agreed with the victim at the time of the instant case, the lower court’s sentencing (two million won of fine) against the Defendant is too unreasonable.

(b) An inspection;

In light of the fact that there are several criminal records, and the crime of this case requires the defendant to regulate illegal parking vehicles in front of his residence under the influence of alcohol, from the victim who is the police assigned for special guard, the crime of this case is unfair because the court below's sentencing against the defendant is too uncomponed so that it can not be conducted at night, and that he would not immediately respond to his request, and that he could not immediately interfere with the performance of official duties in consideration of the victim's request, the crime is not good, the defendant consistently denies the crime, and there is a need for strict punishment against the crime of obstruction of performance of official duties such as the defendant.

2. The judgment of this Court

A. Ex officio determination

Before determining on the grounds for appeal by the Defendant and the Prosecutor, the Prosecutor applied for changes in the indictment to “before the Seosan Seo-gu office on duty in the Seosan Seo-gu office on duty” on the place of crime stated in the facts charged in the instant case through lawful procedures and applied for changes in the indictment to “before the Seosan Seo-gu office on duty, Seosan-gu office on duty,” and the members permitted the changes and permitted the changes in the subject of the trial on this part. Therefore, the judgment of the court below cannot be maintained any more

However, the defendant's assertion of mistake of facts is still subject to a party member's determination.

B. Judgment of mistake of mistake

Unlike the above facts charged and the legal statement of the court below, the victim stated that the defendant was assaulted by the defendant at the time of the police investigation at the time of the police investigation at the time of the "Sesan Seosan Seo-gu office" as the police investigation clearly stated the victim's police statement, the victim's legal statement at the court of the court below and the police investigation at the time of the crime, and the victim's statement at the court of the court below and the police investigation at the time of the court of the court below clearly stated that the victim's statement at the time of the crime was not consistent with the facts charged in this case, the victim's legal statement at the court of the court of the court below and the protocol of the police statement at the court of the court below at the court of the court below at the time of the court below and the police investigation at the time of the court of the court below, and there is no evidence consistent with the changed facts charged in this case. Thus, the victim's legal statement at the court of the court below at the court below and the protocol of the court of the court below at the court below at the court below at the court below.

가사 피해자의 원심 법정진술과 같이 피고인이 ‘봄여름가을겨울 아파트 앞’에서 피해자를 폭행하였다고 하여도 공무집행방해죄는 공무원의 적법한 공무집행이 전제가 되고, 그 공무집행이 적법하기 위하여는 그 행위가 당해 공무원의 추상적인 직무권한에 속할 뿐 아니라 구체적으로도 그 권한 내에 있어야 하는데( 대법원 2002. 4. 12. 선고 2000도3485 판결 등 참조), 피해자가 이 사건 경위에 대해서 원심법정에서 피고인이 당직실에 찾아와 언성을 높이므로, 피고인을 데리고 불법주차현장에 가서 보니, 불법주차 스티커가 부착된 차량도 있고 그렇지 않은 차량도 있어, 피고인에게 ‘지금은 제가 단속할 권한이 없어서 안되니까 댁에 들어가세요’라고 말하자, 피고인이 ‘눈을 까라’는 등 욕설을 하며 뺨을 때렸다고 진술하였는바, 서구청 청원경찰인 피해자의 직무권한은 서구청 건물의 경비업무이고, 불법주차 단속에 관한 권한은 없으므로, 피해자가 앞서 본 바와 같이 당직실에서 수십미터 이상 떨어져 있고, 당직실에서는 보이지도 않는 불법주차장소에 가서 불법주차단속 문제에 관하여 이야기하던 중 피고인으로부터 폭행을 당하였다고 하여도, 공소사실과 같이 피해자의 경비업무에 관한 정당한 직무집행이 방해되었다고 단정할 수는 없을 것이다.

Therefore, it is difficult to see that the facts charged in this case were proven to the extent that there is no reasonable doubt, and there is no other evidence to acknowledge it. Nevertheless, the court below erred by misapprehending the facts against the rules of evidence in determining guilty of the facts charged in this case.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged of this case is as follows: at around 00:15 on November 11, 2007, the defendant demanded that the non-indicted 1 (the non-indicted 34 years old), the police assigned for special guard in the Busan Seo-gu Office, the Busan in front of his residence, make a large number of illegal parking cars in front of his dwelling, and the non-indicted 1 demanded the crackdown, but the non-indicted 1 said that the crackdown is difficult at night and that he would make his weekend be controlled at night, making the non-indicted 1’s right-hand bombs at one time on the floor. Accordingly, the defendant interfered with the legitimate execution of the duties of the police assigned for special guard in relation to the security service. As seen in the above facts charged, it constitutes a case where there is no proof of crime as seen in the above 2-b, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges, if any, (Presiding Judge)