(C) Special obstruction of performance of official duties, damage to special public goods, public goods

Dried damage, general traffic obstruction, obstruction of performance of official duties, injury;

Article 2 (Assaults, Violation of the Road Traffic Act)

A

Both parties

Re-adjudication (prosecutions) and full-time (Trial)

Public-service Advocates Interest

Changwon District Court Decision 2012Gohap499 Decided February 18, 2013

May 31, 2013

All appeals filed by prosecutors and defendants are dismissed.

1. Summary of grounds for appeal;

(a) A prosecutor;

1) Legal principles

Since the excavation of this case used for committing a crime, such as special obstruction of public duty, is practically owned by the defendant, the first instance court's failure to confiscate it is erroneous in the misapprehension of legal principles and unfair sentencing.

The sentence sentenced by the first instance court (three years of imprisonment) is too unhued and unfair.

B. Defendant (an unreasonable sentencing)

The punishment sentenced by the first instance court (three years of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion of misapprehension of legal principles, the confiscation under Article 48(1)1 of the Criminal Act is discretionary, so the issue of whether to confiscate even an article that meets the requirements of the confiscation is left to the discretion of the court of first instance. However, it is subject to the restriction by the principle of proportionality applied to the general punishment (Supreme Court Decision 2008.4.4.)

24. In order to determine whether confiscation violates the principle of proportionality, the following should be considered: (a) the degree and scope used in the commission of this crime and the importance of the crime; (b) the role and degree of responsibility of the owner of the goods in the commission of the crime; (c) the degree of infringement of legal interests and responsibilities arising from the commission of the crime; (d) the motive for the commission of the crime; (e) the profit gained from the crime; (e) separate possibility of the part related to the commission of the crime; (g) the substantial value of the goods; (e) the relation and balance with the crime; (g) whether the goods are unnecessary with the offender; (g) whether the goods are likely to again commit the same kind of crime by using the goods if not confiscated (see Supreme Court Decision 2012Do1586, May 23, 2013). According to evidence duly adopted by the first instance court; and (g) the owner of the instant goods is able to recognize the fact of the instant obstruction of execution of official duties by purchasing the excavation equipment in his name.

However, the following circumstances acknowledged by the evidence as above, i.e., (i) the Defendant purchased the instant excavation machine in the name of her mother, borrowed KRW 46 million from Aju Capital Co., Ltd. in the name of her mother, and made a mortgage on the said company in the future. The obligor B is the obligor of the obligation to lend to the said company. (ii) The Defendant committed a crime of obstruction of performance of special duties, etc. by using the instant digging machine under the influence of alcohol; (iii) there was no crime committed prior to the occurrence of a crime by using the instant digging machine; and (iv) even if the Defendant did not confiscate the instant digging machine, it is anticipated that there was no risk of other crimes by using the digging machine, and thus, the first instance court appears not to be reasonable to confiscate the instant excavation machine, and it is difficult to deem that the Defendant violated the principle of proportionality under Article 48 of the Criminal Act, and thus unlawful.

Therefore, prosecutor's above assertion is without merit.

B. Regarding the assertion of unfair sentencing

On June 8, 2007, the defendant, while under the influence of alcohol, had been sentenced to a fine of 2 million won due to obstruction of performance of official duties, committed assault against the victim D, who met himself, and assaulted the victim C, who prevented the execution of official duties, and at the same time assaulted the victim C with the police assigned for special guard who prevented him/her from drinking, and thereby interfered with the execution of official duties. As a result, even though he/she was arrested and detained in the act of committing an act of committing an act of committing an offense, the defendant's threat the police officers to stop the patrol car and the earth building by driving the so-called the so-called scopter and the earth. In addition, there was a significant damage to the police officer's life and the exercise of public authority, such as destruction of the scopter, extraction of street trees, removal of street trees on the surface of the instant case, damage to the police officer's name, etc., which is still disadvantageous to the police officer's 7th of the instant case.

On the other hand, it is also recognized that there are more favorable factors for sentencing such as the defendant's recognition of the crime of this case and reflects the criminal act of this case, the crime of this case was committed in a drunken and contingent manner, the defendant received mental therapy for 15 years due to depression and yellow disorder, the most economic situation is difficult to support the wife and two children, and there is no other force to punish other than the punishment sentenced three times until now.

In full view of the aforementioned factors of sentencing and the Defendant’s age, character and conduct, intelligence and environment, the motive and background leading to the instant crime, the means and consequence of the instant crime, and the circumstances revealed in pleadings, such as the circumstances after the commission of the crime, the sentence sentenced by the first instance court is deemed to be adequate, and it is not deemed to be too heavy or unreasonable.

Therefore, this part of the prosecutor and the defendant's argument is without merit.

3. Conclusion

Therefore, since both the prosecutor and the defendant's appeal are without merit, they are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge of the Korean Supreme Court;

State of Morse

Judges Lee So-young