Defendant 1 and two others

Prosecutor

Edification

Seoul Eastern District Court Decision 2011Ra1244 Decided September 15, 201

The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal (misunderstanding of legal principles or factual errors);

In the event that the defendants actively filed an application for provisional disposition while submitting false evidence, and the court cites the application for provisional disposition due to a mistake, the execution of duties in relation to the court's decision of provisional disposition shall be deemed to have been practically and specifically hindered. In the case of the provisional disposition decision cited based on the fabricated evidence as in this case, the establishment of a crime of fraud in the lawsuit is denied due to the nature of preservative measure (see Supreme Court Decision 82Do1529, Oct. 26, 1982, etc.) if the crime of obstruction of execution of deceptive scheme is not recognized, the court below which acquitted the defendants,

2. Determination

However, in light of the fact that the court's provisional disposition prohibition against the Defendants' act constitutes the crime of obstruction of performance of official duties by fraudulent means is merely a provisional measure to prevent the alteration of the current state of industrial disputes and does not definitely determine the existence or absence of legal relations as to industrial disputes. However, it may be argued through the procedure of raising objections or revocation request, etc., even though it is difficult to deem that the propriety of the court's provisional disposition decision was infringed due to the act such as the Defendants' act entered in the facts charged, but it cannot be said that the court's specific and realistic execution of duties could not interfere with the court's decision. Thus, the court's provisional disposition can not be ruled out that the court's decision is not a crime of obstruction of official duties by fraudulent means solely on the ground that the Defendants' fraudulent act rendered wrong provisional disposition order, as pointed out in the court below, and thus, it cannot be ruled that there is a possibility that the court's improper decision due to the applicant's false submission of evidence, which is a temporary effect, and that the court's decision cannot be viewed as a final one-six act of this case.

3. Conclusion

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

Judges Shin Ji-gu (Presiding Judge)