2017No737 Performance of Official Duties

A

Defendant

The transfer of a written indictment, a type of trial (public trial)

Attorney B

Suwon District Court Decision 2016Gohap343 Decided March 8, 2017

August 22, 2017

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

Although the Defendant did not assault G by having a police officer G, such as gathering a riot soldier, etc., and the arrest of police officer G and H in the act of committing an offense of obstruction of performance of official duties was illegal, and thus did not constitute an offense of obstruction of performance of official duties, the lower court found the Defendant guilty of the instant charges, which erred by misapprehending the facts and adversely affecting

B. Unreasonable sentencing

The punishment sentenced by the court below (six months of imprisonment, one year of suspended execution) is too unreasonable.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

1) Whether the Defendant assaulted police officers G

The Defendant also argued to the same effect as the grounds for appeal. The lower court found the Defendant guilty of the facts charged in this case by taking account of the circumstances in its judgment. If the lower court acknowledged the circumstances, and the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, the lower court’s judgment is justified, and there is no error of law by misunderstanding facts or misapprehending legal principles, which affected the conclusion of the judgment. The Defendant’s assertion of mistake of facts is without merit. E reported to the police from the investigative agency to the lower court that he was assaulted by the Defendant, and reported to the police to the police by hearing the desire from the Defendant on the ground that he was obsived from the Defendant to the lower court to make a telephone conversation within D and reported to the police. Upon receiving the report, the police officer G and I sent to the Defendant at a restaurant (at a public restaurant) within D with the Defendant, and the Defendant stated that he was able to express his desire to him and police officers, and that he was able to be subject to punishment against the Defendant’s testimony in this case, in light of consistent and specific intent to punish E in this case.

○ 경찰관 G은 수사기관에서부터 원심 법정에 이르기까지 일관되게 '피고인이 자신에게 욕설을 하면서 요구르트 병을 던져 가슴에 맞았고, 피고인이 플라스틱 의자를 걷어찼다'고 진술하였는바, 그 진술이 매우 구체적이고 상세하고, 현장에 출동한 경위, E이 공양간에서 나오게된 경위에 대한 진술도 E 진술과 부합하며, 같이 출동한 경찰관 I도 위와 같은 취지로 진술하였는바, 경찰관 G의 진술은 신빙성 높다.

2) Whether the arrest of a flagrant offender is illegal

The Defendant also asserted the same purport as the grounds for appeal in the lower court. The lower court rejected the Defendant’s assertion in full view of the circumstances indicated in the judgment. Examining the lower court’s determination in light of the evidence above, the lower court’s aforementioned determination is just and acceptable, and there is no error of law by misunderstanding facts or by misapprehending the legal doctrine, which affected the conclusion of the judgment. The Defendant

B. Determination on the assertion of unfair sentencing

The degree of assault by the defendant, which is a means to interfere with official duties, seems relatively unfasible. The defendant has no record of criminal punishment after being punished by a fine in 2003.

On the other hand, in order to establish a national legal order and eradicate the danger of the public authority, it is necessary to strictly punish a crime of obstruction of performance of official duties. The Defendant does not seem to have an attitude against the police officer who was dispatched upon receiving a 112 report, and thus obstructing the police officer’s legitimate performance of duties. In light of the background, contents, etc. of the instant crime, which was committed by a police officer who was called out upon receiving a 112 report, the offense is not good. The Defendant has a record of having been punished by a fine of three million won for the crime of obstruction of performance of official

In full view of all the above circumstances and the Defendant’s age, occupation, character and conduct, environment, background and motive of the crime, and circumstances after the crime, etc., the sentencing judgment of the lower court cannot be deemed to have exceeded the bounds of discretion. There is no change in sentencing conditions to deem that it is unfair to maintain the sentencing judgment of the lower court as it is. Thus, the sentence of the lower court is too unreasonable. The Defendant’s assertion of unfair sentencing cannot be accepted.

3. Conclusion

Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act on the grounds that the appeal by the defendant is without merit.

The presiding judge, judge, fixed-road

Judges Hong-ju

Judges Kim Gin-young