(영문) 대구지방법원 2018.12.20. 선고 2018구합441 판결

A. On May 10, 2013, the Plaintiff was sentenced to 13 years of imprisonment with prison labor for murder, etc. by the Incheon District Court, and was transferred to the 1st prison of North Korea on December 26, 2013 while the said judgment became final and conclusive on December 26, 2013.

B. The Plaintiff, while transporting an animal that was transferred to the 1st correctional institution in North Korea, said that “the bit of bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a bit of a

C. On January 23, 2018, on the ground that the facts suspected of the Plaintiff’s suspicion are recognized, the Defendant issued a 30-day disposition against the Plaintiff pursuant to Article 107 of the Administration and Treatment of Correctional Institution Inmates Act (hereinafter “Punishment Execution Act”) and Article 228 of the Enforcement Rule of the same Act (including the investigation period of eight days, hereinafter “instant disposition”) and completed the enforcement on February 13, 2018.

D. On March 30, 2018, around 14:30 on March 30, 2018, the Plaintiff had a dispute between B and B during the sports in the first prison playground in the North Korean Peninsula, and the Defendant investigated the Plaintiff and B.

E. On April 5, 2018, following the resolution of the disciplinary committee, the Defendant made a disposition of 15 days (two months of grace period) of forfeiture (hereinafter “instant disposition”) in accordance with Article 107 of the Punishment Execution Act and Articles 228 and 114 of the Enforcement Rule of the same Act on the ground that the Plaintiff interfered with normal confinement life.

F. The statutes related to dispositions Nos. 1 and 2 of this case are as shown in the attached Form.

【Unsatisfied facts】 unsatisfied facts; Eul evidence Nos. 1-3. Eul evidence Nos. 3 and 5 (including branch numbers; hereinafter the same shall apply); the purport of the whole pleadings

2. Whether the dispositions Nos. 1 and 2 of this case are legitimate

A. The plaintiff's assertion

1) At the time of undergoing an investigation related to the instant expression, the Plaintiff was not informed of the fact of suspicion corresponding to the offense of insult under Article 311 of the Criminal Act, and was not notified of the authority to appoint an attorney.

The Plaintiff’s expression “chyp bitch bitch bitch bitch bitch bitch bitch bitch bitch bitch,” is somewhat unusual and indecent expression of intent, and cannot be seen as constituting the element of insult under the Criminal Act. Even if the Plaintiff’s statement constitutes an act falling under Article 107 subparag. 1 of the Punishment Execution Act, the instant disposition is an excessive disposition beyond the scope of discretion, compared to the Plaintiff’s act.

Therefore, the first disposition of this case should be revoked because it is unlawful.

2) The Plaintiff’s interference with B is caused by the trial expense of B, and the Plaintiff is merely a request from a correctional officer to correct disorder in the playground. However, the Defendant made the instant disposition against the Plaintiff on the ground that the Plaintiff’s interference with other person’s peaceful living under confinement was caused by mistake of facts without properly understanding the situation before and after the disposition.

Therefore, the disposition No. 2 of this case should be revoked because it is illegal because it deviates from and abused discretion.

B. Determination as to the Disposition No. 1 of this case

The Plaintiff already completed the enforcement of the instant disposition on February 13, 2018. However, the lawfulness of the instant disposition may affect the Plaintiff’s treatment, including the instant disposition No. 2, and thus, it is beneficial to determine the merits. Therefore, the Plaintiff’s determination on the legality of the instant disposition is examined.

1) Facts of recognition

The following facts are acknowledged according to the respective descriptions of evidence Nos. 1 through 4 and the purport of the whole pleadings.

A) On January 15, 2018, the main contents of the Eastern Probation prepared by a correctional officer in charge with respect to the Plaintiff are as follows:

A person who was sentenced to 13 years of imprisonment for the crime of murder and was transferred to Daegu prison on January 15, 2018, and was currently in confinement in the middle floor C, and on January 13:40, 2018, the working person in charge of this person who was designated as a ward in the middle floor C at the Daegu prison on the second floor and transferred to the same prison on January 13:40, 2018, and instructed the person who was in charge of this person to enter the room in harmony with the inmate in the same ward in harmony with the inmate in the same ward in line with his/her instructions" after educating him/her about the matter related to the confinement, he/she moved to the room in charge, and then this person goes in the future of the room in charge, "I am bit bit bit bit bit bit bitch," and "I am to see that I will tell his/her employee," and as stated in this water, I see that he/she "I will see that he/she was working in prison.

B) On January 15, 2018, the Plaintiff was refused to provide assistance, but the Plaintiff was able to do so, and the Plaintiff made a self-written statement stating that “I would like to make it possible for the Plaintiff to report her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her she was asked

C) On January 15, 2018, correctional officer D, the Plaintiff’s abusive victim, followed A(Plaintiff)’s instructions of the relevant employee, and provided education related to prison life, such as harmony with the inmates of the same ward, and well-inward, and instructed A(Plaintiff) to leave the room in front of the relevant room. After moving the designated engine C one time, I am in front of the designated engine C, and "I am in front of the relevant room," and "I am in front of the person in charge, I am. I am? I am out, and I am? I am? I am? I am? I am? I am? I am? I am we am? I am we am a mixed? I am, I am you am you am together with the person in charge, and am together with the management team immediately after leaving the room, and present a report to the Defendant.

D) On January 18, 2018, the special judicial police officer investigated the plaintiff and prepared the plaintiff's statement in relation to the plaintiff's abusive case. The above protocol states that "the special judicial police officer explains the gist of the suspected facts and answers as follows." The plaintiff answer to the purport that "the plaintiff's voluntary statement meets the plaintiff's self-written statement". "I do not have the fact that the plaintiff was forced to make a statement in the time of the statement or the investigation, or suffered suspicions," and "I will attend the disciplinary committee and make a statement later." In addition, the plaintiff stated that "I will attend and make a statement on the physical question "I will have any other words" in relation to this case, "I will have any other words," "I will have any signature or objection," and "I will have any signature or objection," and "I will have any signature or objection" in the investigation process of the statement.

E) It appears that ○○○○○ was a worker at the time of the investigation into the Plaintiff’s desire to do so, and she again called “I would like to see why I would like to see that I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see that I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see "I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I will.

F) On January 22, 2018, the Disciplinary Committee on the First Correctional Institution for North Korea issued a notice of attendance to the Plaintiff on January 15, 2015 on the “suspected charge of insultd in Second Confinement C in the Second Confinement Zone C” on January 13, 2015, and on January 23, 2018, the matters stated in the said notice of attendance are as follows.

1. When a person intends to appear at the disciplinary committee and make a statement in writing or in writing that is beneficial to him/her, he/she shall submit a written statement before the disciplinary committee is held; 3. he/she may apply for a witness and present evidence to the disciplinary committee; 4. Donation may be made to the facts to be used in criminal proceedings disadvantageously; and when he/she makes a statement, he/she may be used in criminal proceedings disadvantageously; 5. If he/she does not wish to be present for a statement, he/she shall promptly submit a written waiver of appearance; 6. If he/she fails to submit a written waiver of appearance or refuses to receive a written notice of attendance without good cause, he/

2) Whether procedural defects are procedural defects

In light of all the circumstances, such as the Plaintiff’s written self-statement and the statement of statement dated January 18, 2018, the Plaintiff appears to have been sufficiently informed of what suspicion was being investigated by workers, investigators, etc. at the time of the investigation related to the instant disposition No. 1, and the notice of suspicion alone was sufficiently anticipated that the Plaintiff may be subject to a disposition under the Criminal Act on the ground of insult under Article 311 of the Criminal Act. Thus, it cannot be deemed that the Plaintiff’s right of defense, etc. was infringed.

In addition, according to the above facts, the plaintiff provided sufficient opportunity to defend the plaintiff, such as the statement and vindication at the investigation process and disciplinary committee, and the notification of attendance at the disciplinary committee, etc., the disposition 1 of this case is deemed to have been made through legitimate procedures. The plaintiff also recognized the expressive act of this case, and there are no matters to investigate in addition to the investigation of the plaintiff, victim, and witness. Thus, it is not sufficient to refer the plaintiff to the disciplinary committee based on the above investigation results. The above disposition is not based on the disciplinary action in the 1 prison of the North North Korean defectors, and it is not in accordance with the criminal procedure procedure, and it cannot be deemed unlawful even if the defendant did not notify the right to refuse to make statements and the right to receive counsel in the investigation process

Therefore, the plaintiff's argument about procedural defect is without merit.

(iii) the existence of the reasons for the action

The offense of insult under Article 311 of the Criminal Act is an offense, the legal interest of which is protected by the external reputation, which means a social evaluation of the value of a person. It refers to the expression of an abstract judgment or sacrific sentiment that may undermine a person’s social evaluation without a statement of fact (see Supreme Court Decisions 87Do739, May 12, 1987; 2003Do3972, Nov. 28, 2003; 2015Do6622, Dec. 24, 2015).

In light of the following circumstances acknowledged by the facts and the purport of the entire pleadings as seen earlier, the instant expression appears to have intentionally specified the said victim by means of not the Plaintiff’s standard of marriage but the Plaintiff’s expression of objection or defense against the employee’s instruction to move the Plaintiff, and the Plaintiff’s attitude after the instant expressive act, the objective meaning and context of the said expression, etc., it is reasonable to deem that the instant expression constitutes an insulting speech that expressed an abstract judgment or a sacrific sentiment that may undermine the social assessment of the personal value of the said employee, who is the victim.

Therefore, the ground for Disposition No. 1 of this case is recognized.

4) Whether the discretion is deviates or abused or abused

According to Article 107 subparag. 1 of the Execution Act, Article 311 of the Criminal Act, and Article 215 subparag. 1 of the Enforcement Rule of the Punishment Act, prisoners shall not engage in any act of openly insulting persons, and when they violate this, the prison warden may impose disciplinary punishment of ‘a fine for not less than 21 days but not more than 30 days'.

According to the following circumstances revealed by taking full account of the aforementioned facts and the purport of the entire pleadings, even if considering the circumstances alleged by the Plaintiff, it cannot be deemed that the Plaintiff violated the principle of proportionality and the principle of equity by excessively harsh treatment.

① The Plaintiff appeared at the disciplinary committee pursuant to Article 228(1) of the Enforcement Rule of the Punishment Act and stated his/her opinion on the instant expression through the examination procedure. The disciplinary committee appears to have made a resolution on disciplinary action in consideration of both the Plaintiff’s statement and attitude.

② The Plaintiff’s instant expressive act constitutes an act prohibited under Article 107 subparag. 1 of the Punishment Execution Act and Article 311 of the Criminal Act. The instant expressive act is within the scope of “a fine not less than 21 days but not more than 30 days” under Article 215 subparag. 1 of the Enforcement Rule of the Punishment Execution Act.

③ On the date of the Plaintiff’s transfer to the 1st correctional institution of North Korea, the Plaintiff engaged in the instant expressive act. As to this, the Plaintiff consistently made a vindication, such as that it was a mixed-form language without any apology against the victim. In light of the fact that the Plaintiff sworn the victim due to the instant expressive act, and the need to maintain order in prison and to maintain order, etc., it is difficult to view that the degree of violation of the instant expressive act is minor.

④ Although the Plaintiff asserts that the disposition No. 1 of this case is contrary to the principle of equity with other cases, there are no materials to acknowledge the disposition. As such, there are differences between the circumstances of each case, the situation at the time, the subsequent attitude, and the degree of expression, etc., and thus, it is difficult to uniformly compare them.

C. Determination as to the Disposition No. 2 of this case

1) Facts of recognition

The following facts are acknowledged according to the entry of the evidence No. 6 and the purport of the whole pleadings.

A) In the investigation of the witness relating to the peaceful interference with confinement life between the Plaintiff and B, the dedicated unit, etc. being admitted to the Class I prison of the North Korean Peninsula, the following statement was made:

Although the part of the ○ bath theory was not heard, there was a big dispute between A (Plaintiff) and B, and as a result A was put in selling B, there were two people.

○ 당시 운동장에서 족구를 하고 있었는데, 시끄러운 소리가 나서 보니 A과 B이 서로 싸울 듯이 마주보고 있었다. A이 "왜 사람을 밀치고 가냐"고 하자 B이 "왜 앞에서 얼쩡거리냐, 안쪽으로 다니지 " 하면서 서로 큰소리를 냈고, 그 소리를 듣고 사람들이 두 사람을 말리러 왔다. A이 B을 때릴 듯이 달려들자 사람들이 A을 잡고 그 자리에서 벗어나게 하였는데, B이 다시 A에게 다가와서 "해볼 테면 한번 해봐라"면서 큰 소리로 말을 하자 A이 "어휴"라는 말을 하면서 B에게 다시 달려들었고, 주위 사람들이 이를 말렸다. 이후에 운동 주임이 두 사람을 제지하고 화해를 시키려고 하였지만, B이 큰소리로 A에게 "때릴 테면 때려봐라"고 하였고, A이 교도관에게 "이것 보십시오. 어떻게 합니까. 처리해 주세요"라고 하여 교도관이 두 사람을 관구실로 데리고 갔다.

The two people have to carry out an election campaign during the ○ sports hours, and the two people have not been able to engage in a dispute, and they have been unable to do so properly. At the time, many playgrounds have been repaired and have been interfered with the living under confinement.

○○ The challengeed A, but did not take any bath or mileage.

(ii) the board;

A) According to Article 107 Subparag. 6 of the Punishment Execution Act, Article 214 Subparag. 14, and Article 215 of the Enforcement Rule of the same Act, prisoners shall not engage in any act that substantially interferes with the peaceful living under confinement of other prisoners by causing a large sound or slickness to the prisoners, and the head of the correctional institution may impose a disciplinary measure such as 10 to 15 days or 2-month work bonus reduction.

B) In light of the following circumstances, it is difficult to view that the instant Disposition No. 2 was beyond the discretionary power or constitutes abuse of the discretionary power, such as misunderstanding of facts, based on the overall purport of video and oral arguments set forth in the evidence No. 2 (2018Guhap21721).

① Although the dispute between the Plaintiff and B appears to be due to the trial expense of B, in light of the Plaintiff’s attitude toward the trial expense of B and the situation in which many visitors in the playground were employed to make a speech, etc., the Plaintiff seems to significantly interfere with the peaceful living of prisoners in the playground by actively and aggressively responding to the action, rather than merely having gone through passive response, and it does not seem that the responsibility of the said disturbance is entirely attributable to B.

② At the same time, the chip, etc., who was engaged in an election campaign in the playground, stated that the investigation of the witness was obstructed by the Plaintiff and B by causing disturbance.

③ The instant disposition is within the scope of the disposition stipulated in Article 215 subparag. 3 of the Punishment Execution Act. Pursuant to Article 114 of the same Act, the disciplinary committee decided to postpone its execution in consideration of the motive and circumstances of the Plaintiff’s act, correctional records, degree of penance, etc.

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed, and it is so decided as per Disposition.