2015No2048 Performance of Official Duties

1. A;

2. B

Defendants

Meritorious and Lee Jong-hoon (Court of Second Instance)

Seoul Northern District Court Decision 2015Ma2802 Decided October 30, 2015

June 3, 2016

The judgment of the court below is reversed.

The Defendants, not guilty, publicly notified the summary of the judgment against Defendant A.

1. Reasons for appeal;

A. Error of mistake

Defendants did not commit any assault against police officers.

B. Unreasonable sentencing

The punishment of the Defendants is heavy.

2. Determination

A. Summary of the facts charged

At around 02:40 on April 2, 2015, the Defendants met alcohol at “Dju” located in Seoul Special Metropolitan City, Nowon-gu, and failed to pay the drinking value, and caused Defendant B to wear a pedago, such as shouldering glass, and 6 police officers, such as the security guards belonging to the Seoul Nowon Police Station E-gu, Seoul Nowon Police Station, who was called upon 112 after receiving the report, did not want to punish the Defendants, and taken measures to have the Defendants returned. At that time, the Defendants failed to drive the police officer F, who belongs to the E-gu, while driving the police assigned to the E-gu, while ascertaining the reported contents. At that time, the Defendants obstructed the rest of the patrol 17th day of the police assigned to the police officer, and obstructed Defendant B’s 17th day of the patrol, and obstructed Defendant B’s 17th day of the patrol.

As such, the Defendants jointly interfered with the legitimate performance of duties concerning the on-site movement.

B. Determination on the grounds for appeal

1) The crime of obstruction of the performance of official duties is a constituent element of the crime of assault and intimidation, and does not constitute the crime of obstruction of the performance of official duties. The separate provision of the crime of obstruction of the performance of official duties from the crime of obstruction of the business under the Criminal Act is to distinguish between private duties and official duties, and the purport of punishing public officials only when they interfere with the execution of official duties by means of assault, intimidation, or deceptive means (see Supreme Court en banc Decision 2009Do4166, Nov. 19, 2009).

The crime of obstruction of performance of official duties is established by assault or intimidation against a public official performing his/her duties, and the assault or intimidation is against a public official performing his/her duties by nature and must interfere with the performance of his/her duties (see Supreme Court Decision 2009Do13968, Jun. 24, 2010).

2) According to the evidence duly examined and adopted, the fact that the Defendants committed the act as described in the facts charged is acknowledged. However, considering the contents of the Defendants’ act, the location and situation of police officers at the time of the act, and the duration during which the Defendants’ act continued, the said Defendants’ act alone cannot be said to have committed violence against police officers exceeding the degree of power.

3) The facts charged against the Defendants constitute a case where there is no proof of crime. The lower court erred by misapprehending the facts charged against the Defendants.

Conclusion

Pursuant to Article 364 (6) of the Criminal Procedure Act, the judgment of the court below shall be reversed and the pleading shall be ruled as follows.

The summary of the facts charged against the Defendants is as stated in 2. A. B., which constitutes a case where there is no proof of a crime for the same reason as stated in 2.B., pursuant to the latter part of Article 325 of the Criminal Procedure Act.

The defendants shall be acquitted and the summary of the judgment against the defendant A shall be announced in accordance with Article 58 (2) of the Criminal Act.

Judgment of the presiding judge;

Judges Cho Byung-hee

Judges, the number of judges