2015Gohap286 Special Obstruction of Performance of Official Duties, Damage to Public Goods, General Automobile Fire Prevention

(Recognized Crime Name and Own Fire Prevention) and Road Traffic Act;

Anti-driving, Violation of the Road Traffic Act (Unlicensed Driving)

A

The date of use (prosecution), Kim Young-American (Trial)

Attorney B (Korean National Assembly)

August 21, 2015:

A defendant shall be punished by imprisonment for not less than one year and six months.

One disposable gas (Evidence Nos. 1), one disposable gas (Evidence No. 2), and one paint containing light oil (Evidence No. 3) shall be confiscated.

Criminal History Office

【Criminal Power】

On June 17, 2015, the Defendant was sentenced to a suspended sentence of two years for a violation of the Road Traffic Act at the Busan District Court on August 25, 2015, and the said judgment became final and conclusive on June 25, 2015.

【Criminal Facts】

In the past, the Defendant filed several reports on the fact that gambling is being carried out at a specific place with dissatisfactions to lose money in the past, and all of the reports were identified as false reports, and thus, the Defendant was subject to summary judgment.

Therefore, while the defendant, who was in flag, took a call at the police box, the police officer complained of the complaint about the phrase that the police officer would be present at the police box, and thought that the police officer was able to commit the suicide of the prisoner by driving the box at the police box.

Therefore, the Defendant, after drinking alcohol, went through the oil tank of his vehicle and then deducted the transit from the oil tank to prepare it in advance, driven the vehicle to the head of the Busan District Police Station C for Reporting, and driving the vehicle into the Busan District Police Station C box, where the Defendant kept one for the end-time stop with the waste box containing the transit and one for the end-time stop and one for the vehicle.

1. Violation of the Road Traffic Act and the Road Traffic Act;

On May 27, 2015, under the influence of alcohol level of 0.072% on blood alcohol level around May 27, 2015, the Defendant driven a e-typ car from the front day of the Jinho-gu in Busan, Mono-dong 1, 488-13, to the front day of the Busan, Haak-gu, Busan, Busan, Haak-gu, C District of the Police Station C District in Busan, the Defendant driven a e-typ car at the 3km section.

2. Damage to public goods;

On May 27, 2015, at around 21:27, the Defendant driven the said high sacrife vehicle, and opened the ciffe the entrance of the police box to the end, and had a part of the above stairs used by public offices, which are the goods used by public offices, have the above stairs departmented at the concrete stairs door of the above police box, thereby undermining the market value’s repair cost.

3. Special obstruction of performance.

As stated in Paragraph 2, the defendant would take the vehicle on the front stairs of the C police box, and the police officer F, who works at the C police box, attempted to rescue the defendant's vehicle into the driver's seat of the defendant, and the police officer G tried to extract the vehicle from the top wheel of the defendant's vehicle and rescue the defendant.

The Defendant: (a) spread the transit transit prepared in advance to the vehicle inside the vehicle and its own body; (b) put the vehicle into a single-use engine; (c) put the vehicle into a shot gas to the inside of the vehicle; and (d) put the shot G on the front side; and (c) put the above shot G into a working clothes of the rocketing G. Accordingly, the Defendant interfered with police officers’ legitimate performance of duties in relation to the maintenance of order by carrying with the said police officers, a dangerous object.

4. His own fire prevention; and

At the time, at the time, at the place, under paragraph (3), the defendant spreads the vehicle via the vehicle inside the E-Scar owned by the defendant, and burns the vehicle under his own possession by attaching a fire to the fluor gas, and by setting the fluor of the fluor.

Summary of Evidence

1. The defendant's partial statement in the first protocol of trial;

1. Statements made by witnesses F and G in the second protocol of the trial;

1. Some statements (including attachment) of the prosecutor's office and police interrogation protocol of the accused;

1. The statement of each police officer made to F and G;

1. A written statement of the G production;

1. The police seizure record and the list of seizure;

1. A report on investigation by the prosecution (a document G attached to the senior executive officer);

1. Investigation report by each police station (including false report, relation to the driving of a police station, relation to the scene and photograph of vehicles, relation to paints that contain light oil used for committing a crime, and relation to CCTV images (including attachment) of a police box);

1. Destruction, photograph, etc. (excluding the part on which statement is written), copy of the report of detection of summary trial offenders, summary trial report, defendant's criminal investigation report, 112 report handling, statement of circumstances of the driving of the 112 case, notification of the result of the crackdown on drunk driving, shocking stairs of police boxes and photographs of vehicles, vehicle driver's license register, vehicle driver's license register, capsfling out and photographed out of the suspect's vehicle and external photograph (29 days photograph);

1. Previous records of judgment: The statement of the accused, case search, criminal records, etc. during the first trial record;

Application of Statutes

1. Article applicable to criminal facts;

Articles 144(1) and 136(1) of the Criminal Act (the point of obstructing special performance of official duties), Article 141(1) of the Criminal Act (the point of damage to public goods), Article 166(2) and (1) of the Criminal Act (the point of preventing a fire to one’s own motor vehicle), Article 152 subparag. 1 and 43 of the Road Traffic Act (the point of driving without a license) and Articles 148-2(2)3 and 44(1) of the Road Traffic Act (the point of operating a motor vehicle)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the punishment imposed on a violation of the Road Traffic Act and a violation of the Road Traffic Act, and the punishment imposed on a violation of the Road Traffic Act with heavier punishment)

1. Selection of punishment;

Each Imprisonment Selection

1. Handling concurrent crimes;

The latter part of Article 37 and the main sentence of Article 39 (1) of the Criminal Act [Mutual Crimes and the Violation of the Road Traffic Act, etc. as indicated in the final judgment]

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the crime of piracy for Execution of Special Public Duty, which is the largest punishment)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

As to the crime of obstruction of performance of official duties in the judgment, the defendant did not shoot the string of the vehicle owned by the defendant while using the shot gas earth and the shot gas earth, and did not shoot the shot G by using the shot gas earth, and with respect to the crime of cutting off the vehicle under his own possession in the judgment, the defendant was shot part of the string of the vehicle owned by the defendant in the process of dusting through his body and attaching a fire, and it did not intentionally burns the above vehicle, and therefore, this part of the facts charged is not guilty.

2. Determination

The subjective element of the constituent elements of a crime refers to cases where the possibility of occurrence of a crime is uncertain and it is permissible to do so. In order to have dolusent intent, not only the perception of the possibility of occurrence of a crime but also the internal intent to allow the risk of occurrence of a crime. Whether or not an offender is aware of the possibility of occurrence of a crime must be determined based on the specific circumstances, such as the form of an act and the situation of an act performed outside, without depending on the statement of the offender, in consideration of how the possibility of occurrence of the crime can be assessed (see, e.g., Supreme Court Decision 2009Do13862, Jun. 10, 201). Meanwhile, the psychological condition of the offender must be confirmed from the standpoint of the offender (see, e.g., Supreme Court Decision 2009Do13862, Jun. 10, 201). Meanwhile, the method of recognizing the other facts based on the empirical rule that the other party is a public official performing his duties, and the method of proving the existence of an intentional intent or intimidation is unreasonable.

In light of the above legal principles, the following circumstances acknowledged by the evidence adopted by this court, such as the witness F and G, among the second trial records, and the statement of this case, i.e., F and G, which attempted to rescue the defendant at a low-speed car at the time of the crime of this case, are consistent from the investigation agency to the court, to the effect that "at the time immediately after the low-speed car driven by the defendant conflicts with the C police box, it appears to have seen that the defendant used the above sub-gas, and the defendant was not directly present at the time of the crime of this case," and the defendant stated that "at the time of the first police examination, the defendant was not present at the time of the crime of this case with the intention of using the above sub-gas, and the defendant was not present at the time of the crime of this case, and the defendant stated that "at the time of the crime of this case, the defendant was able to use the above sub-cars and sub-cars by carrying the above vehicle with his body to see it, and that the defendant's body was not present."

1) The crime of this case was committed in a planned manner by the defendant, preparing a stop for the first and second stop for light of light oil, and then driving of his own motor vehicle under the influence of alcohol without obtaining a driver's license, and then damaging the concrete stairs before the police box box. It was destroyed by using the aforementioned abscopter and the scoptototooth, and obstructed the legitimate execution of duties by assaulting the police officer G who intends to rescue himself with a bhot gas bomb, which is a dangerous object in the process. In light of the law and content of the crime, the crime was considerably poor; the defendant had a history of being sentenced to criminal punishment about 10 times in the same kind of crime, violation of the Road Traffic Act, and violation of the Road Traffic Act (on the other hand), and the agreement or restoration of damage with the damaged police officer, etc. until now, it is necessary to hold the defendant liable with heavy liability corresponding to it.

However, it seems that there are some circumstances to consider the circumstance that the defendant attempted to commit the crime of this case while he is not healthy due to mental division, etc., and it seems that there is no history of criminal punishment heavier than the suspended execution prior to the crime of this case, and the degree of damage to the public goods and the crime of damage to the motor vehicle owned by him seems not to be more severe. Each crime of this case is in the concurrent relation between the crime of violation of the Road Traffic Act and the crime of violation of the latter part of Article 37 of the Criminal Act, which has already become final and conclusive, and the crime of violation of the Road Traffic Act should be sentenced in consideration of equity in the case where the judgment is rendered simultaneously pursuant to the former part of Article 39(1) of the Criminal Act, and all the sentencing conditions of this case, such as the defendant's age, career, character and behavior, environment, motive and background of the crime, means and method of the crime, and the circumstances after the crime, etc.

Judges of the presiding judge;

Judges Lee Jae-in

Judges Dok-hee

1) The sentencing guidelines do not apply to each of the crimes listed in the holding, since all of the crimes are concurrent crimes under the latter part of Article 37 of the Criminal Act.