[재정신청기각결정에대한재항고][집41(2)형,726;공1993.10.1.(953),2467]
The nature of obstruction of another person's exercise of rights under Article 123 of the Criminal Code, where the application for meeting is refused because it does not fall under "necessary use" under Article 18 (2) of the Criminal Administration Act.
The criminal intent as a subjective constituent element of Article 123 of the Criminal Code includes the awareness that he/she may abuse his/her authority other than the awareness that he/she obstructs the exercise of his/her right, so if a correctional officer who was in charge of meeting affairs in a prison refuses an application for meeting by deeming that the application for meeting does not constitute "necessary work" under Article 18 (2) of the Criminal Administration Act, the act of refusal of meeting does not constitute only the fact that there was no awareness of illegality of the act of refusal of meeting, but also the crime committed against abuse of authority does not constitute the above crime
Article 123 of the Criminal Act, Article 18(2) of the Criminal Administration Act
Appellant 1 et al., Counsel for the plaintiff-appellant
Cho Hok and five others
Seoul High Court Order 91 First267 Dated May 29, 1992
The reappeal is dismissed, respectively.
Re-appellants' grounds of reappeal are examined.
According to the records, it is correct that the court below judged that the suspect 1 and 2 refused the application for interview of this case, and there is no misapprehension of the legal principles such as the theory of lawsuit.
A criminal intent as a subjective constituent element for a crime under Article 123 of the Criminal Code includes the awareness that he/she may abuse his/her authority other than the awareness that he/she obstructs the exercise of his/her right. Thus, if a suspect 3, 4, 5, and 6, who has been in charge of meeting in a prison, refuses an application for interview as determined by the court below, considering that the application for interview in this case does not constitute "necessary work" under Article 18 (2) of the Criminal Administration Act, the above suspect is not merely a person who has no awareness of the illegality of the act of refusing the application for interview, but it does not constitute the above crime since he/she has no awareness of the illegality of the act of refusing the application for interview, so the court below's order to the same purport is correct, and there is no error of law as to the interpretation of the criminal intent and the mistake of law,
Therefore, each reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Jong-soo (Presiding Justice)