[폭력행위등처벌에관한법률위반,공무집행방해,병역법위반][공1992.1.15.(912),370]
(a) The intent of intimidation and the threat of harm and injury as a means of the crime of extortion where they are used as a means to enforce rights;
(b) The scope of the right to request perusal of data to public institutions of reporters of magazines and the method of exercising such right;
(c) The case holding that a person who has received a notification for military force mobilization training shall not be deemed to fall under a justifiable reason not to enlist in the army under Article 78 of the Military Service Act on the sole basis of the fact that he knows the exemption of training from administrative defense soldiers in the reserve forces, and provides answers to him.
A. Intimidation as a means of a crime of threat refers to notifying a person’s freedom of decision-making or interference with a person’s freedom to enforce a will, and the realization of the harm and injury so notified does not necessarily require that it is unlawful, and even if the threat is used as a means of realizing a right, if the threat and harm were to take advantage of the other party as a means of intimidation by undermining the exercise of the right, and if the method of exercising the right exceeds the permissible level or scope under the social norms, the crime of threat is established.
B. It does not mean that a magazine reporter has the right to peruse or request materials from a public institution higher than that permitted for the general public, and even if such right is guaranteed to the general public, the perusal, etc. of such materials must be in accordance with legitimate procedures, and it is not possible to exercise that right by means of violence, intimidation, etc.
(c) The case holding that the defendant's reply to the fact that he was served with a military force mobilization training notice and that he did not exempt the administrative defense soldiers of the reserve forces from the training shall not constitute a justifiable reason not to enlist in the military service under Article 78 of the Military Service Act on the sole basis of the fact that he resisted to the fact that he was not exempted from the training and
(a)Article 20(a) of the Criminal Act; Article 350(1)(b) of the Criminal Act; Article 136(1)(c) of the Military Service Act;
A. Supreme Court Decision 84Do2644 delivered on September 10, 1985 (Gong1985,1363) 90Do114 delivered on August 14, 1990 (Gong1990,1986) 90Do1864 delivered on November 23, 1990 (Gong191,269)
Defendant
Defendant
Daegu District Court Decision 91No1276 delivered on August 30, 1991
The appeal is dismissed.
The number of days under detention after an appeal shall be included in the calculation of the original sentence.
We examine the grounds of appeal.
As to the violation of the Punishment of Violences, etc. Act
1. Examining the evidence relations established by the court below based on the records, the fact-finding in this part of the court below is justified, and there is no error of law as to entering the rules of evidence, hearing, or finding facts without any evidence, such as the theory of lawsuit. Therefore, there is no reason to issue this part of the court below.
2. Intimidation as a means of the crime of intimidation refers to notifying a threat of harm and injury likely to be drinking to the extent that it limits the freedom of decision-making or obstructs the freedom of decision-making. The realization of the harm and injury so notified does not necessarily require that it is unlawful, and even if the threat is used as a means of realizing a right, if the threat is used as a means of realizing a right, causes the other party to be drinking by means of intimidation, and the method of exercising the right exceeds the permissible level or scope under the social norms, the crime of intimidation is established.
3. There is no reason for the lower court’s assertion of facts that the lower court did not recognize, or criticizes the lower judgment from its own point of view.
As to obstruction of Performance of Official Duties
1. In light of the records, this part of the findings of fact-finding by the court below is just and there is no error of law by misunderstanding the rules of evidence or incomplete hearing, such as the theory of litigation.
2. In addition, as a reporter of a magazine, it does not hold the right to peruse or request materials from a public institution higher than that permitted for the general public. Even in cases where such right is guaranteed to the general public, the perusal, etc. of such materials must follow legitimate procedures, and it is not possible to exercise the right by using means of violence, intimidation, etc., and thus, the Defendant’s decision’s illegality cannot be said to be a legitimate act that is dismissed. The argument is without merit.
As to the violation of the Military Service Act
The assertion of the theory that a captain of the reserve forces is exempt from military force mobilization training for a period corresponding to the period of his service does not constitute a justifiable ground for not enlistment under Article 78 of the Military Service Act on the sole basis of the receipt of a notification of military force mobilization training and the answer that the defendant asks for the administrative defense soldiers of the reserve forces who are not exempted from the training of the defendant, to report and dispose of the fact that the training of the defendant is not exempted from the training of the defendant. There is no reason for this argument.
Therefore, the appeal shall be dismissed, and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Jae-chul (Presiding Justice)