Defendant 1 and two others

Both parties

Jin-Jin-Jin

Law Firm Dasan, Attorney Kim Dol-han

Suwon District Court Decision 2010 Godan589 Decided December 8, 2010

All appeals filed by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Grounds for appeal by the Defendants

In light of the specific situation and overall circumstances faced by the Defendants, the sentence imposed by the lower court on the Defendants (Defendant 1: fine of three million won, and fine of two million won for each of the Defendants 2 and 3) is too unreasonable.

(b) Grounds for appeal by prosecutors;

(1) misunderstanding of facts or misapprehension of legal principles

(A) Violation of the Assembly and Demonstration Act on March 23, 2009 by Defendant 1 and Defendant 2

Even if all sides are surrounded by walls, if a large area of space is formed, and considerable outside persons in addition to the assembly-related persons hold an assembly at a place where they can act together, the judgment of the court below which acquitted the facts charged in this part of the crime constitutes an outdoor assembly, and there is an error of misunderstanding of facts or misunderstanding

(B) Defendant 3’s obstruction of performance of official duties

Since the duty of omission by the installer of Pyeongtaek-si, etc., such as the defendant, was converted to the duty of alternative act by the public official in charge of the protection of the office building, the removal act by the public official of Pyeongtaek-si at the time is a legitimate performance of official duties, and the act of assault and intimidation by the defendant, etc. against this constitutes obstruction of performance of official duties, the judgment of the court below which acquitted this part of the facts charged

(2) Unreasonable sentencing

In light of the fact that the defendants did not seem to have any attitude to deny the crime while continuing to commit the crime, the court below's punishment is too uneasible and unfair.

2. Determination

A. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

(1) The violation of the Assembly and Demonstration Act on March 23, 2009 by Defendant 1 and Defendant 2

The summary of this part of the facts charged is as follows: on March 23, 2009, from around 11:50 to 13:25, the Defendants, the organizer of the above assembly, by holding an assembly, such as requesting the chairperson to hold an interview with ten members of the Joint Committee on Construction and Transportation of Gyeonggi-do Council in front of the conference room of the Construction and Transportation of the Gyeonggi-do Council, which is located in Suwon-gu Seoul Metropolitan City, for the purpose of amending the Ordinance, and by holding an assembly, such as raising a relief such as “probing through the ordinances of the ordinances of the mobility disadvantaged,” the Defendants, the organizer of the above assembly, held the assembly without reporting the assembly

In light of the above facts charged, it is clear that the Defendants’ meeting room in front of the Gyeonggi-do Construction and Transportation Standing Committee meeting, which is a place where an assembly is held as stated in the above facts charged, does not correspond to outdoor, and the Defendants’ prior measures for maintaining public safety and order should be taken in order to prevent infringement of the interests of others or community and to maintain public safety and order because it is necessary to prepare prior measures for maintaining public safety and order because it is necessary to report it to the chief of the competent police station in advance. Accordingly, the Defendants’ above assembly cannot be deemed as an outdoor assembly requiring prior report. Accordingly, the Prosecutor’s assertion on this part is without merit.

(2) Defendant 3’s obstruction of performance of official duties

The summary of this part of the facts charged is as follows: at around 18:50 on December 23, 2008, at around 18:50, the Defendant, along with four members of the Pyeongtaek-si △△△△△△△△△△△△△△△△△△△ Group, Nonindicted 1, and ten public officials of Pyeongtaek-si, including Nonindicted 2, in the course of installing a tent for the purpose of additional dispute over the activity auxiliary time for disabled persons, who instructed that the above act was illegal, and continuously installed a tent even though the above act was prevented, the Defendant and the members of the △△△△△△△△△△△△△△△△△△△△△△△△△△△△, who want to remove the tent by the public officials of the above Dong-si and tried to install the tent. The Defendant conspired with the members of the above public officials to interfere with the clothes of the above public officials, and interfere with the above public officials, and to perform their duties in good faith.

However, the crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established only when the performance of duties by a public official is legitimate. Here, legitimate performance of official duties refers to not only where such act belongs to the abstract authority of the public official, but also meets the legal requirements and methods for the specific performance of duties. Thus, the crime of obstruction of performance of official duties is not established on the ground that an act of assault or intimidation was committed against a public official who lacks such legitimacy (see Supreme Court Decisions 9Do4341, Jul. 4, 200; 2004Do4731, Oct. 28, 2005). In addition, Article 65 of the Road Act only provides that the act of obstruction of official duties by a public official violates the duty of removal under the Administrative Vicarious Execution Act or the duty of removal of vicarious execution under the same Act and subordinate statutes, and thus, it does not constitute a violation of the duty of removal of official duties by an administrative agency, as a matter of course, which does not require correction or an order of vicarious execution.

With respect to this case, it is deemed that public officials of the Pyeongtaek-si Office constitutes performance of their duties on the protection of public roads. This is based on Article 65(1) of the Road Act (On the other hand, the prosecutor asserts in the statement of grounds of appeal that the removal of the above tent by the public officials of the Pyeongtaek-si Office is a measure to protect the office building of Pyeongtaek-si. However, even if it is based on the above facts charged, it is difficult to view the above act as a measure to protect the office building. Even if the members of the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△ removal of a tent removal, etc., as stated in the facts charged, it is difficult to recognize that the public officials of the office of Pyeongtaek-si did not lawfully perform their duties on the part of the public official, and thus, it cannot be viewed as legitimate.

B. Determination on the Prosecutor’s and Defendants’ assertion of unreasonable sentencing

With respect to the assertion of unfair sentencing by the Defendant and the prosecutor, there are circumstances to consider the following as to the assertion of unfair sentencing: (a) Defendant 1 and Defendant 2 are disabled persons; (b) the Defendants did not commit the instant crime for their personal interests but caused the instant crime in order to secure the right to move of the disabled persons; (c) Defendant 1 had been punished several times due to the violation of the Punishment of Violences, etc. Act; (d) Defendant 2 had the record of having been punished two times due to the violation of the Punishment of Violences, etc. Act; (c) Defendant 3 had the record of having been punished two times of fines due to the violation of the Punishment of Violences, etc. Act; (d) the expression of diverse opinions by citizens in a liberal democratic society should be guaranteed; (e) it is impossible to take into account their opinions in a way beyond the scope recognized by Act; and (e) other various circumstances that form the conditions of sentencing, such as the age, character and conduct, occupation, occupation, and family relationship of the Defendants, and thus, it cannot be deemed that the above Defendants’ charges are too heavy or unreasonable.

3. Conclusion

Therefore, the appeal by the Defendants and the prosecutor is dismissed in accordance with Article 364(4) of the Criminal Procedure Act on the ground that the appeal by the Defendants and the prosecutor is without merit. It is so decided as per Disposition (However, according to Article 25 of the Regulation on Criminal Procedure, Article 22(2) and Article 6(1) of the Assembly and Demonstration Act and Article 30 of the Criminal Act (the holding of each unreported Assembly and Demonstration Act) shall be corrected to “Article 22(2) and Article 6(1) of the Assembly and Demonstration Act, and Article 30 of the Criminal Act (the holding of the unreported Assembly and Demonstration Act).”

Judges Ahn Ho-hee (Presiding Judge)