Defendant

b. Hearing (prosecution, public trial)

LLC et al., Counsel for defendant-appellant

A defendant shall be punished by imprisonment for one year.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

Seized evidence 1 to 3 shall be confiscated, respectively.

1. The explosion of tear coal in the president of the National Assembly (the Punishment of Violences, etc. Act, the obstruction of special obstruction of performance of official duties, and the operation of the place of the special National Assembly meeting);

On November 22, 2011, the Defendant, as the 17th National Assembly member belonging to ○○○○○○ Party, was scheduled to hold the plenary session for deliberation on the draft consent to the ratification of the Korea-U.S. FTA at 16:00, and from 15:08, 190 members of the National Assembly were admitted from around 15:08, and Nonindicted Party 1 was seated at the seat of the Speaker of the National Assembly and prepared the opening of the plenary session, thereby hindering the plenary session and obstructing the progress of the plenary session to prevent the deliberation on the draft consent to the ratification of the Korea-U.S. FTA.

On the same day, at around 15:58, the Defendant delivered a bank containing one SS tear powder powder powder powder from a person who was off his name before the entrance at the plenary session. At around 16:08, the Defendant removed safety height and safety railers from the front front of the front seat at around 16:08, and then spread the tear powder remaining in the body of the foregoing Nonindicted Party 1.

Ultimately, the Defendant laid down the tear gas, which is a dangerous object as above, and spread the powder to the above Nonindicted Party 1, and 11, 12, 13, 14, and 15, Nonindicted Party 16 to the National Assembly member, Nonindicted Party 17 to the Director of the National Assembly, Nonindicted Party 18, 19, and 20 to the Chairman of the National Assembly, Nonindicted Party 18, 19, and 20 to the Chairman of the National Assembly, and Nonindicted Party 21, 22, 9, and 23 to the Chairman of the National Assembly, and at the same time to interfere with the deliberation of the plenary session and the above member of the National Assembly by delaying the opening of the plenary session. At the same time, the Defendant committed assault to the Chairman of the National Assembly with the aim of obstructing the deliberation of the National Assembly.

2. Violation of the Control of Firearms, Swords, Explosives, etc. Act;

The defendant did not obtain permission from the authorities to possess explosives.

Nevertheless, from the beginning of the date to November 22, 2011, the Defendant possessed one of the maximum fugitive powder (manufacturing model SY-44), which is explosives, in the Council room (defluence omitted) and the plenary session of the National Assembly.

In the end, the Defendant possessed the tear gas, which is an explosive, without obtaining permission from the authorities.

3. Violation of the Political Funds Act;

From April 13, 2006 to February 27, 2008, the Defendant, as an accounting manager of ○○○○○○ Party, was in charge of the management of assets and accounting.

On April 18, 2006, the Defendant received 17,672,120 won under the name of a national bank account in the name of "○○○○○○○○ Party (C)" (Account No. 1 omitted) which was not reported to the election commission, from those who did not receive KRW 17,672,120 under the pretext of party membership fees, and received political funds from those who did not report to the election commission as described in the attached Table 1 through 2 of the crime list from April 13, 2006 to February 27, 2008, including the remittance of KRW 17,672,120 under the name of a national bank account (Account No. 1 omitted) in the name of "○○○○○ (C) Party (△△△△△△△)" and “○○○○ Party (Account No. 2 omitted) (Account No. 2 omitted)” through two bank accounts in the name of a national bank account in the name of an institution or institution.

1. Partial statement of the defendant;

1. Each prosecutorial statement concerning Nonindicted 4, 5, and 24

1. Investigation report (Attachment of minutes of the plenary session of the National Assembly);

1. An investigation report (to attach relevant data to an account not reported on ○○○○○○);

1. Investigation report (on-site confirmation at the third floor of the National Assembly);

1. An investigation report (a photograph of a photograph of the National Assembly’s broadcast or a photograph of the press by capturing a video of the broadcast);

1. Each protocol of seizure;

1. Requests for appraisal by the National Institute of Science Investigation, replys, and additional briefings;

1. The National Assembly broadcast videos DVD (data attached to seizure records of 205 pages);

1. A written accusation by the chairman of the Central Election Management Commission;

1. A copy of the account of the National Bank and the account transactions in each account of the ○○○○○○○○○ (C) (△△△△△) (B);

1. A report on a change in accountant in charge at ○○○○○○○ Party (Defendant ? Defendant 25);

1. List of the support personnel of the plenary session on November 22, 201, and the placement limit at the plenary session of the National Assembly;

1. Article applicable to criminal facts;

Articles 144(1), 136(1)(special obstruction of performance of official duties), 138(a) of the Criminal Act, Article 70(1)2(2) of the Control of Firearms, Swords, Explosives, etc. Act (the illegal possession of explosives), Article 12(1) of the Political Funds Act, Articles 47(1)9, 36(2), and 34(4)1(1) of the Political Funds Act (the receipt of political funds without going through the reported deposit account), Articles 3(1) and 2(1)1 of the Punishment of Violences, etc. Act, Article 260(1) of the Criminal Act (the possession of dangerous personal assault)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the punishment for a violation of the Punishment of Violences, etc. Act (the violence against groups, deadly weapons, etc.), the special obstruction of performance of official duties, and the concurrent operation of the place of a special National Assembly meeting (the punishment for a violation of the Punishment of Violences, etc. Act with heavy punishment

1. Selection of punishment;

Selection of each imprisonment with labor on the violation of the Control of Firearms, Swords, Explosives, etc. Act and the violation of the Political Funds Act

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act (the punishment shall be aggravated within the scope of adding up the long-term punishment of each of the crimes as prescribed by the Punishment of Violence, etc. Act (collective, deadly Weapons, etc.) in the judgment with the largest punishment)

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Defendant's assertion;

A. Crimes of special obstruction of performance of official duties

In order to establish the instant special obstruction of performance of official duties, the progress of the plenary session by the president of the National Assembly and the deliberation on the agenda of the National Assembly members should be justifiable execution of duties. However, since both the ex officio fixed procedure of the consent to the ratification of the Korea-U.S. FTA, the notification procedure of convening the plenary session

(b) Violation of the Punishment of Violences, etc. Act;

The Defendant did not throw or use the tear gas to the victims, and did not do so, and only spread the tear gas to Nonindicted 1 by the president of the National Assembly. Thus, the facts charged in the instant case premised on the Defendant’s use of the tear gas as a criminal tool is unlawful. Even if not, the tear gas or tear gas powder does not constitute “hazardous things” under the above law.

(c) Crimes of operating special meetings of the National Assembly;

Article 138 of the Criminal Code is subject to punishment "a person who is acting for the purpose of interfering with or threatening the deliberation of the National Assembly." The defendant does not intend to obstruct or block the deliberation of the consent to ratification of the Korea-U.S. FTA at the plenary session of the National Assembly, but, after the deliberation was completed, the defendant had a member of the National Assembly of Dogsung Party draft snow water, but it was inevitable for the defendant to use the tearom prior to the resolution of the consent to ratification because the circumstances of the National Assembly were to force the member of the National Assembly to go through snow, but the defendant did not meet the requirements for the composition of the above crime.

(d) Violation of the Control of Firearms, Swords, Explosives, etc. Act;

The instant tear gas ( Model Name SY-44) used by the Defendant does not include explosives falling under any of the subparagraphs of Article 2(2) of the above Act, and does not constitute explosives under the above Act.

(e) Violation of the Political Funds Act;

1) ○○○○○ (C) Account (Account Number 1 omitted) account

The above account is a MS withdrawal account for the collection of party members’ party membership fees, and is returned to the election commission via a computer program again. The Defendant recognized the above account as a mechanical passage for the withdrawal of cms, and did not receive any pointed out or education that cms connection account should also be reported from the election commission. Therefore, it cannot be deemed that there was a perception of illegality on the ground that the above account was not subject to reporting under the Political Funds Act or there was considerable reason to believe that the accountant in charge is not subject to reporting.

2) ○○○○○○○ (△△△△△△) account (Account Number 2 omitted)

Since the above account was the revenue account of the ○○○○○○○ Party, and the accountant in charge separately operated the accounts of the ○○○○○○ Party’s account, the revenue related to the ○○○○○○ Party was not perceived as “political funds” or “party revenues” as provided for in the Political Funds Act. Furthermore, in light of the fact that the accounting data reported to the election commission was falsely indicated as 0 won, the instant indictment constitutes an abuse of public prosecution right against equity, and thus, constitutes an abuse of public prosecution right.

2. Determination:

The evidence duly adopted and examined by this Court shall be determined as follows.

A. Special obstruction of performance

(1) The National Assembly’s plenary session was scheduled on November 24, 11, December 2, 12, and December 9, 12. However, on November 22, 201, the National Assembly’s plenary session was opened at the plenary session of the National Assembly, and the series of related processes on that day is arranged in order of time as follows.

- Holding a general meeting of 14:00 Doese Party

- 14:40 Non-Indicted 2 refers to the policy for processing the proposed consent to the ratification of the Korea-U.S. FTA, which is the representative of the Republic of Korea.

- The exercise of the right to maintain order by Nonindicted 3, 15:07

- 15:20 Designation of the period of review for the ratification of the Speaker of the National Assembly of Nonindicted 3 as 16:00 and request for the convocation of the plenary session

- 15:25 Notification of the opening schedule of the plenary session to the Secretariat of the National Assembly and to the administrative offices of each negotiating party (Secretariat of the National Assembly).

- 15:50 Notification of schedule of the opening of the plenary session to each assemblyman office (Secretariat of the National Assembly)

- 16:01 The review process and the interim report by the Speaker of the National Assembly shall be received from the Chairman of the External Session

- 16:08 Defendant’s Twitter at front of his seat in front of the Speaker.

- 16:24 Declaration of the opening of the President of the National Assembly of Nonindicted Party 1

- 16:27 Resolution on non-disclosure agenda at the session of the President of the National Assembly of Nonindicted 1

- 16:32 Adoption of the proposed consent to the ratification of the Korea-US FTA

- 16:50 Resolution 14 cases of the Korea-US FTA Implementation Bill

- 17:03 plenary session

(2) It is evident that the crime of obstruction of the performance of official duties, which is punished by Article 136 of the Criminal Act, is established only when a public official’s performance of official duties is legitimate. Therefore, the defendant’s three reasons for the progress of the plenary session in this case and the deliberation of the items

First of all, whether it is illegal in relation to the ex officio ruling of the Korea-U.S. FTA ratification consent, and the resolution of the plenary session is unlawful, since the defendant obstructed the progress of the plenary session by leaving the lowest luxan, and thus, the opening of the plenary session itself cannot be deemed unlawful. In addition, in preparation for the case where the National Assembly Secretariat makes a resolution of non-disclosure of the plenary session, the act of prohibiting coverage is unlawful, and the procedure of opening the plenary session is not immediately unlawful.

Next, according to the above time order, the National Assembly Secretariat, in fact, notified the administrative office of 15:25 negotiation body and each office of 15:50 council members of the plenary session to 16:00 of the date and time of opening each plenary session. However, considering that the initial plenary session was scheduled three times on November 24, 11, 12.2, and 12.9 on the same day, as the National Assembly members present immediately after the general meeting of the plenary session was held, many members of the plenary session were not present at the plenary session at the time, such notification itself may be deemed to have a problem in terms of effective aspects.

However, even if there are somewhat improper points in the convocation procedure as above, it cannot be said that the performance of duties by individual National Assembly members present for such a plenary session (whether or not supporting or opposing the bills to be presented at the plenary session) is an unlawful official duty.

Furthermore, the purpose of demanding the legality of performance of official duties in the establishment of the crime of obstruction of performance of official duties lies mainly on the fact that the Criminal Act does not need to protect the unlawful performance of official duties against the citizens, or that the citizens can exercise self-defense against unlawful performance of official duties and resistance against infringement of rights and freedom is recognized. However, as in this case, in a case where a compulsory disposition is not a compulsory disposition as in the administrative law, even if it is somewhat improper or detailed part of the administrative law is not a compulsory disposition, it constitutes a crime of obstruction of performance of official duties under the Criminal Act if it was done in accordance with the method prescribed by the law, since it constitutes a duty worthy of protection under the Criminal Act if it was done by a person with authority for one-time official duty, it constitutes a crime of obstruction of official duties under the Criminal Act. Therefore, even if the plenary session has some unreasonable parts in the convocation procedure, if it interfered with it by violence, it shall be deemed that the crime of obstruction of official duties is established (see Supreme Court Decision 98Do662, May 12, 1998).

Therefore, it is difficult to find out the legitimacy of the defendant's assertion, even though it appears to be any mother.

(b) Punishment of Violences, etc. Act;

Whether a certain thing constitutes “hazardous thing” under Article 3(1) of the Punishment of Violences, etc. Act ought to be determined based on whether the other party or a third party could feel a risk to life or body when using the thing in light of social norms (see, e.g., Supreme Court Decision 2010Do10256, Nov. 11, 2010).

살피건대 최루탄은 그 내에 기폭장치인 신관을 갖고 있어서 뒤에서 보는 것처럼 총포·도검·화약류 등 단속법상 그 소지가 엄격히 제한된다. 또한 이 사건 최루분말의 주성분인 올소-클로로벤질리딘말로노니트릴(ο-chlorobenzylidenemalononitrile)은 일반적으로 CS로 불리는 최루물질로서 인체에 대하여 자극, 구토, 구역, 호흡곤란, 현기증, 폐 울혈, 신장 이상, 설사, 경련, 자극, 최루, 알레르기 반응, 수포 및 피부에 대한 과민성 물질에 해당한다.

In light of the above point, the tear gas in itself as well as the tear gas in most cases, and the tear gas in all, are objects that cause danger to life and body by social norms, and constitutes “hazardous objects” under Article 3(1) of the Punishment of Violences, etc. Act.

Meanwhile, according to the relevant video images, even though it is not clear, the defendant was in the vicinity of the committee members and the National Assembly members at the time when the defendant set a tear gas, and later there was an employee of the National Assembly who was expressed as the victims of the instant assault, including Nonindicted 1, the president of the National Assembly at the seat of the council and the stenographic records in front of the year. Even if there was no victim from the tear gas itself or its mar, it can be deemed that the victim was used as a means of assault because it is evident that there was a victim within the distance within the scope of scattering.

(c) Place and Dong of the special National Assembly meetings;

In light of the fact that, if the defendant laid tear at the plenary session of the National Assembly, which is an indoor space where the defendant was closed, anyone could expect that it would thereby interfere with the plenary session of the National Assembly. In light of the fact that the defendant saw a plug card against the ratification consent of the Korea-U.S. FTA, with the members of the plenary session, and puts the plug card at the plenary session, and cut the plug for the reasons of the plenary session, the defendant seems to have put the plug in this case from the beginning of the plenary session to obstruct or delay the opening of the plenary session or the deliberation of the agenda of the members of the plenary session.

Therefore, we cannot accept the argument that there was no "purpose" of interference because the defendant used the tear gas prior to the resolution of the consent to ratification because of the circumstances of the National Assembly.

(d) Violation of the Control of Firearms, Swords, Explosives, etc. Act;

According to Article 2 (3) 3 (c) of the above Act, the term "new pipes and chemical pipes" shall be defined as "fire-processed articles (referring to structures made by using powders and explosives)" which are the kind of powders. Since the tear gas of this case is being installed with a new pipe as a preventive device, it constitutes fire-processed articles as stipulated in the above provision. In addition, with regard to whether the tear gas of this case constitutes explosives, it is obvious that the defendant's assertion is based on Article 2 (2) of the above Act and Article 2 (3) of the above Act, not Article 2 (2) of the above Act.

(e) Violation of the Political Funds Act;

On August 4, 2005, the Political Funds Act was wholly amended and enforced from the following day. According to the Act, all political parties may report a person in charge of accounting and make revenue and expenditure only through an account reported to the competent election commission (the revenue account can be opened several times, but the expenditure account must be opened only once). The Defendant is a person in charge of accounting who has reported to the National Election Commission from April 13, 2006 to February 27, 2008 as the Secretary-General of ○○○○○○○ Party and reported to the National Election Commission by the National Election Commission. Meanwhile, the “report on the appointment, concurrent office, or change of a person in charge of accounting” forms of the National Election Commission’s “report on the appointment, concurrent office, or change of a person in charge of accounting” is written in the form of a political fund deposit account, and the relevant statutes, required documents, and cautions are written at the bottom of the said Act. The National Election Commission, on October 205, 2005, each political party education was conducted against each political party officer in charge.

On the other hand, it is doubtful whether the above ○○○○○○ (C) account (Account No. 1 omitted) account received all of the above money in relation to CD joint payments, payments received, and money deposited with electronic financing (attached Form 1. Serial No. 164 through 168) in addition to the Cms withdrawal for the collection of party membership fees, and whether the above money was automatically transferred to the account reported to the election commission.

Ultimately, in full view of all such circumstances, the allegation that the Defendant did not have awareness of illegality in relation to each of the above accounts or could not be recognized as “the party’s revenue” is nothing more than the assertion of “the party’s revenue,” and thus, cannot be accepted.

Furthermore, as to the assertion on abuse of public prosecution right relating to the ○○○○○○○ (△△△△△△△△△) account, barring special circumstances, such as where the prosecutor, while instituting the instant public prosecution, he/she was aware of a criminal charge against the person in charge of accounting on △△ Party, or where he/she received the accusation, he/she shall not be accepted as the indictment of this case without any evidence to deem that the indictment of this case deviates from the discretionary authority.

In such a case, the democratic basic principle is to decide whether to implement the policy by means of a free debate, even though various opinions are presented in respect of a specific policy, and in such a case, it is the democratic basic principle to decide whether to implement the policy by exercising violence on the grounds that one’s own opinion is not fulfilled. However, it may not be accepted for any reason to prevent a defendant, who has the status of a member of the National Assembly before establishing the democratic basic order, from exercising violence, which is the representative organ of the National Assembly, under the Constitution where the defendant, who has the status of a member of the National Assembly, who is a member of the National Assembly, must faithfully implement the democratic basic principles, is obliged to be faithfully implemented. In addition, the National Assembly, which is the representative organ of the Constitution, should be criticized. Moreover, the National Assembly, where the democratic basic principle is to be achieved, shall not be used as a place of political propagation of a specific political person.

On the other hand, such violence by the defendant has also criticized the problems of the Korea-U.S. FTA in a sound manner and persuade the people to improve them. In other words, the defendant's violence has emerged rather than the problems of the Korea-U.S. FTA, resulting in the appearance of the people for the problems of the Korea-U.S. FTA.

In addition, so long as the defendant uses tear gas, which is dangerous thing, as a means of assault and obstruction of performance of official duties, the sentence of imprisonment is inevitable.

However, although the Defendant was timizing the tear gas, it was not intended that he would directly injure the members of the Blutan as the tear gas, and there was no victim who was actually injured due to the explosion of the tear gas. Moreover, the Defendant consistently stated that he planned the instant crime in the view that he would cause the members of the Magging Party to feel the snow of the ordinary people who were suffering from the ratification of the Korea-U.S. FTA.

In addition, considering the fact that the current form of the National Assembly, which was unable to deliberate and vote on the bill in accordance with the National Assembly decision-making method in the National Assembly Act, seems to have contributed to some extent, and that seven of the victims of this case, including Non-Party 14, Non-Party 15 of the National Assembly members, and many of the members of the National Assembly and the citizens of the National Assembly submitted a written application that the defendant wants to take the action on the ground that the defendant's act was not for private interest, it shall be punished as ordered.

Judges Kim Yong-sik (Presiding Judge) (Presiding Justice) Kim Young-sik Lee Jin-jin