Main Issues
[1] The meaning of "aggravated," "abruptive," "abruptive," and "Assault" among the elements of special obstruction of performance
[2] In a case where the Defendants were indicted for obstruction of special performance of official duties on the grounds that they committed assault to the employees of the National Intelligence Service who executed the warrant of search, seizure, verification, and arrest warrant for arrest against the office of the National Assembly members Eul, etc. belonging to the political party Gap in collusion with the legitimate persons Gap, the case holding that the Defendants’ act of exercising force in order to interfere with legitimate performance of official duties by the National Intelligence Service employees to enforce the warrant issued by the judge was guilty on the
Summary of Judgment
[1] The crime of obstruction of performance of official duties under Article 144(1) of the Criminal Act is established by assaulting or threatening a public official who exhibits a group or multiple force or who performs his/her duties by carrying a dangerous object. In this context, the term “serious” refers to the number of the majority people who are gathered to the extent that it is not possible to form a group, and the term “defensive force” refers to recognizing the other party the ability sufficient to restrain the intention of a person, and it does not necessarily require that the other party’s intention should be practically controlled. The term “Assault” includes not only the exercise of direct tangible power against public officials, but also the exercise of indirect tangible power.
[2] In a case where the Defendants were indicted for obstruction of performance of official duties by committing multiple assault to the NIS employees who enforced a warrant for search, seizure, verification of evidence and arrest warrant for interrogation and arrest of suspects against the office of the National Assembly members Eul belonging to the political party Gap in collusion with Gap party-related persons, the case holding that the Defendants guilty on the ground that the Defendants’ lawful execution of official duties by the National Intelligence Service employees who attempted to enter the office and interfere with the warrant for search and seizure inspection and the control of entry after entering the office is lawful disposition necessary for the execution of warrant, and that the procedure under the Criminal Procedure Act is complied with when executing a warrant for arrest and seizure inspection and arrest warrant for Eul's lawful execution of official duties issued by the judge, so long as the Defendants exercised tangible power to obstruct this, means, urgency, and supplementary requirements, and thus, it does not constitute a justifiable act.
[Reference Provisions]
[1] Article 144(1) of the Criminal Act / [2] Articles 20, 30, 136(1), and 144(1) of the Criminal Act; Articles 72, 119, 120, 200-5, 209, and 219 of the Criminal Act
Reference Cases
[1] Supreme Court Decision 2010Do7412 Decided December 23, 2010 (Gong2011Sang, 271)
Escopics
Defendant 1 and 22 others
Prosecutor
Syece et al.
Defense Counsel
Law Firm extent and seven others
Text
Defendant 1 and 2 shall be punished by imprisonment with prison labor for one year and by imprisonment for ten months, and by imprisonment for six months, by imprisonment for Defendant 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 3,00,000, and by fine for 2,00,000,000.
Defendant 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23 fail to pay each of the above fines, the Defendants shall be confined in the workhouse for the period calculated by converting 10,000 won by one day.
However, the execution of each of the above punishment shall be suspended for two years for defendants 1, 2, 3, 4, and 5 from the date this judgment becomes final and conclusive.
Defendant 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23 are ordered to pay the amount equivalent to the above fine.
Criminal facts
【Criminal Power】
On March 29, 2013, Defendant 2 was sentenced to imprisonment with prison labor for six months at the Seoul Central District Court for a violation of the Punishment of Violences, etc. Act (joint injury), and the judgment became final and conclusive on November 28, 2013.
On March 29, 2013, Defendant 8 was sentenced to two years of suspension of execution on August 28, 2013 by a Seoul Central District Court for a violation of the Punishment of Violences, etc. Act (joint injury), and the judgment was finalized on November 28, 2013.
On March 29, 2013, Defendant 16 was sentenced to imprisonment with prison labor for six months at the Seoul Central District Court for a violation of the Punishment of Violences, etc. Act (joint injury), and the judgment became final and conclusive on November 28, 2013.
【Criminal Facts】
1. As to the execution of a warrant of search, seizure, and verification on August 28, 2013, including the office of Non-Indicted 1 National Assembly members, on the part of Defendant 3, 8, 9, 13, 19, and 20
On August 28, 2013, around 08:11, 2013, National Intelligence Service employees presented a warrant for search and seizure inspection of Nonindicted 1 and Nonindicted 2’s offices, etc. issued by Nonindicted 3 to Nonindicted 2 before Nonindicted 1’s office and assistant officers Nonindicted 2’s office located in the National Assembly Hall of Yeongdeungpo-gu Seoul, Yeongdeungpo-gu. In addition, the National Intelligence Service employees commenced the execution of search and seizure of the above office.
이러한 사정을 알게 된 피고인 등 △△△△당 관계자들은 압수수색이 진행 중인 위 사무실에 모여 수십 명의 △△△△당 관계자와 함께 사무실 주변에서 고성을 지르는 등 소란을 피웠다. 그러던 중, 피고인 3은 국가정보원 직원들이 압수수색검증영장을 집행함에 있어 사무실의 출입을 통제하자 그 안으로 들어가기 위해 국가정보원 직원의 팔을 잡아당기고 몸을 밀치고, 피고인 8은 국가정보원 직원들이 압수수색검증영장을 집행하기 위해 사무실 안으로 진입하려 하자 출입문 앞을 막아서고 국가정보원 직원의 몸을 잡아 밀치고, 국가정보원 직원들이 디지털포렌식 장비를 설치하려 하자 피고인 9와 함께 수사관을 교체해 달라며 “물어봤잖아, 그런데 이걸 그냥 씹어, 그리고 앉아가지고 물어보는데 이를 갈아, 뭐야 이게 도대체, 여기가 당신 사무실 공간이야? 와가지고 이게 뭐하는 태도야.”라고 소리쳐 영장 집행을 방해하고, 피고인 9는 국가정보원 직원들이 압수수색검증영장을 집행하기 위해 사무실 안으로 진입하려 하자 몸으로 막아서고 손으로 국가정보원 직원의 몸을 밀치고, 휴대전화로 영장의 집행 과정을 촬영하고 있던 국가정보원 직원의 카메라를 가려 촬영을 방해하고, 계속하여 국가정보원 직원이 문서를 압수하려 하자 낚아채 빼앗고, 피고인 13은 국가정보원 직원들이 압수수색검증영장을 집행함에 있어 출입을 통제하기 위해 출입문을 닫으려 하자 국가정보원 직원의 상의와 몸을 잡아 흔들고, 국가정보원 직원들이 압수수색에 필요한 장비를 사무실 안으로 옮기려 하자 몸을 잡아 막아서고, 손으로 영장의 집행 과정을 촬영하고 있던 국가정보원 직원의 카메라를 가려 촬영을 방해하고, 피고인 19는 국가정보원 직원들이 압수수색검증영장의 집행을 위해 사무실 안으로 진입하려 하자 몸으로 막아서고 손으로 국가정보원 직원의 몸을 밀치고, 피고인 20은 국가정보원 직원들이 압수수색검증영장을 집행함에 있어 사무실의 출입을 통제하자 그 안으로 들어가기 위해 고성을 지르면서 몸으로 국가정보원 직원의 몸을 밀치고, 사무실에 들어간 후에는 변호인 참여 후에 영장을 집행하라며 몸으로 출입문 앞을 막아서고, 피고인 12는 압수수색 중인 국가정보원 직원들에게 계속하여 영장의 집행을 중단하라며 소리치고, 피고인 18은 국가정보원 직원들이 압수수색검증영장을 집행하기 위해 사무실 안으로 진입하려 하자 양팔을 벌려 막아서고, 공소외 4, 5는 각각 국가정보원 직원들이 압수수색검증영장을 집행하기 위해 사무실 안으로 진입하려 하자 출입문 앞을 막아서고, 공소외 6은 손으로 영장의 집행 과정을 촬영하고 있던 국가정보원 직원의 카메라를 가려 촬영을 방해하고, 공소외 7, 8은 각각 국가정보원 직원들이 영장을 집행하는 동안 휴대전화로 국가정보원 직원들의 얼굴과 영장의 집행 장면을 촬영하고, 피고인 17, 공소외 9, 10, 11, 12는 각각 국가정보원 직원들이 압수수색검증영장을 집행하지 못하도록 공소외 1의 집무실 앞을 막아서고, 공소외 13은 국가정보원 직원들이 압수수색검증영장을 집행하지 못하도록 △△△△당 관계자들 여러 명과 함께 사무실 가운데 무리지어 서 있고, 성명을 알 수 없는 다수의 △△△△당 관계자들은 국가정보원 직원들이 압수수색검증영장을 집행하기 위해 사무실 안으로 진입하려 하자 몸으로 막아서고, 사무실 안에서 압수수색이 진행되는 동안 몸으로 국가정보원 직원들을 막아서는 등 영장 집행을 방해하였다.
Accordingly, the Defendants conspired with the relevant persons of the △△△△△△ Party, including Defendant 12, 17, 18, and Nonindicted 7, and committed violence to the NIS employees executing the warrant of search, seizure, and verification of Nonindicted 1’s offices, etc., thereby hindering the legitimate execution of the duties regarding the execution of the warrant.
2. As to the execution of a detention warrant for questioning a criminal suspect against Nonindicted Party 1 on September 4, 2013 (hereinafter referred to as “Detention warrant”) by Defendant 1, 3, 2, 7, 23, 23, 10, 11, 12, 8, 9, 14, 15, 16, 17, 18, 19, 20, 22, 5, 21, 6-6, 201
On September 4, 2013, at the National Assembly around 16:25, the motion to arrest Nonindicted Party 1 was passed and the arrest warrant against Nonindicted Party 1 issued by Nonindicted Party 14 was executed.
피고인들은 공소외 15, 16, 17 등 △△△△당 관계자 수십 명과 함께 서울 영등포구 의사당대로 1 국회의원회관 (호수 생략)에 있는 공소외 1의 사무실 인근에 모여 있다가, 같은 날 19:10경 국가정보원 직원들이 공소외 1의 사무실 앞에 이르러 출입문을 막아선 보좌관 공소외 15, 비서관 피고인 4에게 영장을 제시하고 그 집행을 위해 사무실 안으로 진입하려 하자 그 집행을 저지하기 위하여, 피고인 1은 출입문을 막아서며 국가정보원 직원의 멱살을 잡아 흔들고, 피고인 3과 함께 국가정보원 직원의 상의를 붙잡아 약 2~3m 정도 끌어낸 후 “직원이야 이 새끼야, 신분 밝혀, 신분 밝히라고.”라는 등 욕설을 하고, 손으로 국가정보원 직원의 몸을 5~6회 밀치면서 “당신이 깡패인지 아닌지 어떻게 알아, 신분증 까.”라는 등 소리를 지르고, 다른 국가정보원 직원에게 “새끼야, 신분증 까.”라는 등 욕설을 하면서 멱살을 잡아 흔들고, 계속하여 국가정보원 직원들이 사무실 안으로 진입하는 것을 막기 위해 국가정보원 직원의 멱살을 잡아 흔들고 양팔로 몸을 끌어안아 밀치고, 다른 국가정보원 직원의 상의 뒷목 부분을 잡아채어 끌어당기며 “나와 새끼야, 나와 이 개새끼들아.”라는 등 욕설을 하고, 주위에 있던 △△△△당 관계자들에게 “한 명씩 뜯어내.”라고 소리를 질러 주변에 있던 성명을 알 수 없는 △△△△당 관계자로 하여금 국가정보원 직원의 팔과 몸을 잡아 끌게 하고, 피고인 3은 위와 같이 피고인 1과 함께 국가정보원 직원의 상의를 붙잡아 끌어낸 후 “여기서 행패하는 거야? 까라고, 누구냐고 씨발아, 누구냐고 씨발.”이라는 등 욕설을 하면서 손과 팔로 몸을 밀치고, 피고인 2는 영장 집행을 방해하는 사람들을 제지하던 국가정보원 직원에게 다가가 상의 뒷목 부분을 잡아채 약 2~3m 정도 끌어내 구석에 넘어뜨린 후 그를 향하여 발을 휘두르고, 피고인 5는 사무실 안으로 진입하려는 국가정보원 직원의 몸을 밀치고 손을 잡아 꺾고, 팔로 국가정보원 직원을 끌어안아 밀치고, 국가정보원 직원들이 공소외 1에게 접근하지 못하도록 막아서며 양팔로 몸을 끌어안아 밀치고, 계속하여 팔꿈치로 국가정보원 직원의 어깨를 내리찍고, 피고인 7은 딸 공소외 17과 함께 사무실 안으로 진입하려는 국가정보원 직원들의 뒤에서 상의를 잡아당기고, 피고인 23, 10은 각각 국가정보원 직원들의 옷을 잡아 밀치고 몸으로 막아서고, 피고인 11은 팔로 국가정보원 직원들의 몸을 밀치고 몸으로 막아서고, 피고인 12는 국가정보원 직원들을 막아서며 “당신 깡패들이야.”라는 등 소리를 지르고 국가정보원 직원들의 손을 붙잡고 손과 몸으로 몸을 밀치고, 피고인 8은 국가정보원 직원들이 공소외 1에게 접근하지 못하도록 손으로 잡아 밀치고 몸으로 막아서고, 피고인 9는 사무실 안으로 진입하려는 국가정보원 직원의 팔을 잡아당기고 손과 몸을 밀치고, 피고인 14는 양팔로 국가정보원 직원을 껴안아 밀치고, 피고인 15는 국가정보원 직원들을 몸으로 막아서고 손과 팔로 몸을 밀치고, 피고인 16은 국가정보원 직원들을 몸으로 막아서고 옷을 붙잡아 밀치고, 피고인 17은 국가정보원 직원들이 공소외 1에게 접근하지 못하도록 막아선 채 계속하여 고성을 지르고 손과 몸으로 국가정보원 직원들의 몸을 밀치고, 피고인 18은 출입문을 막아서고 팔로 국가정보원 직원의 다리를 끌어안아 밀치고, 피고인 19는 국가정보원 직원들이 공소외 1에게 접근하지 못하도록 막아서며 손과 몸으로 국가정보원 직원의 몸을 밀치고, 피고인 20은 국가정보원 직원들을 몸으로 막아선 채 손과 몸으로 몸을 밀치고, 피고인 22는 몸으로 막아서며 국가정보원 직원의 옷을 잡아당기고 손으로 몸을 밀치고, 피고인 21은 국가정보원 직원들을 몸으로 막아선 채 손목을 잡아 꺾고 몸을 껴안아 밀치고, 피고인 6은 영장 집행을 방해하는 사람들을 제지하던 국가정보원 여성 직원의 손을 붙잡고 얼굴을 향하여 손을 휘두르고, 다른 국가정보원 직원의 팔을 붙잡아 끌어당기고, 공소외 15와 공소외 16은 사무실 안으로 진입하려는 국가정보원 직원들을 몸으로 막아서고, 공소외 4는 국가정보원 직원들이 사무실 안으로 진입하지 못하도록 출입문 뒤쪽에 서 있고, 공소외 18은 국가정보원 직원들이 공소외 1을 구인하는 과정에서 경찰관과 국가정보원 직원을 밀치고 호송차량 진행로에 약 2~3초 동안 드러누워 영장 집행을 방해하고, 성명을 알 수 없는 다수의 △△△△당 관계자들은 국가정보원 직원들을 막아서고 몸을 밀치는 등 영장 집행을 방해하였다.
Accordingly, the Defendants conspired with the persons related to the △△△△△△ Party, including Nonindicted 15, 16, and 17, and subsequently interfered with the legitimate execution of the warrant by committing violence against the National Intelligence Service employees executing the arrest warrant against Nonindicted 1.
3. As to the execution of a warrant of search, seizure, and verification regarding Nonindicted 19’s residence on August 28, 2013
Non-Indicted 19 is a full-time representative of △△ Group who was detained on October 24, 2013 and continues to be tried for insurrection, etc. with the ○ District Court.
On August 28, 2013, around 06:56, in order to investigate the instant case, the National Intelligence Service’s employees arrived at the residence of Nonindicted 19 in Yangju-si ( Address 1 omitted) and began search and seizure by presenting the warrant of search and seizure verification issued by Nonindicted 3 by the ○○ District Court judge Nonindicted 3 to the wife of Nonindicted 19 and Nonindicted 19.
At around 08:10 on the same day, the Defendant attempted to enter the NIS employee’s body in order to prevent the execution of a warrant of search, seizure, and verification before Nonindicted 19’s residence, and, when the NIS employee controlled the Defendant’s access for the reason of search and seizure, he saw that “Chos, bitch bitch bitch bitch 20, bitch bitch bitch 20, and election campaigned by Nonindicted 20.”
Accordingly, the Defendant committed violence to the NIS employees executing warrant of search, seizure, and verification of the residence of Nonindicted 19, thereby obstructing the legitimate execution of duties regarding the execution of warrant.
4. As to the execution of a warrant of search, seizure, and verification on Nonindicted 1’s residence, etc. on August 28, 2013
On August 28, 2013, around 06:40 on August 28, 2013, the National Intelligence Service’s employees presented a warrant of search and seizure issued by Nonindicted 21 and a present police officer Nonindicted 3 to the head of the security team, Nonindicted 21 and the present police officer at Nonindicted 1’s residence in Mapo-gu Seoul ( Address 2 omitted), and commenced search and seizure. On the same day, around 08:35, the National Intelligence Service’s employees entered the above officetel and continued search and seizure by presenting a warrant to the Defendant who asserts that he/she is his/her residence. The Defendant asserted that the seized articles are owned by himself/herself during
On the same day, in order to confirm the actual resident of the above officetel, the National Intelligence Service employees issued a warrant of search and seizure inspection to Nonindicted 1 and Defendant’s body, brushes, brushes, body organs, etc. from Nonindicted 3 to Nonindicted 22, and tried to initiate the execution of the warrant by presenting the warrant to the Defendant and his defense counsel. In order to prevent the execution of the warrant, the Defendant entered the toilet and destroyed the items in the toilet using the frus as the flussing articles. The NIS employees who want to open the door for the execution of the warrant were threatened by the NIS employees, including “I ma, I am a flusium, I am a flussium, I am a flusium, I am a flusium, I am a flusium, I am ambling, I am a flusium, etc.” on the same day.
Accordingly, the Defendant interfered with the legitimate execution of the warrant by imposing violence or intimidation on the staff of the NIS who executed the warrant for search, seizure, and verification of Nonindicted Party 1’s dwelling place.
Summary of Evidence
<1> <1>
1. Each legal statement of the witness Nonindicted 23, 24, and 25
1. The prosecutor’s statement concerning Nonindicted 26
1. Each statement of Nonindicted 23, 24, 25, and 27
1. Video CD - Search and Seizure (C) of the National Assembly Center;
<2> <2>
1. Each legal statement of the witness Nonindicted 28, 29, 27, and 30
1. The prosecutor’s statement concerning Nonindicted 31
1. Each statement of Nonindicted 27, 28, 30, and 29
1. Each video CD - Execution of Nonindicted Party 1 Job Offer Warrant (A), (B)
<3> <3>
1. Each legal statement of the witness, Nonindicted 32 (Nonindicted 32) and Nonindicted 27
1. The statement of Nonindicted 27
1. Video CD - Search and seizure of the residence of Nonindicted 19
1. The witness Nonindicted 32 (Nonindicted 32)’s legal statement
1. The prosecutor’s statement concerning Nonindicted 32
1. Each video CD - Search and Seizure (Mapo-1), and (Mapo-2) for Nonindicted Party 1’s residence
1. Copies of each criminal history record inquiry (defendants 2, 8, and 16), case inquiry, and Seoul Central District Court Decision 2013No207;
Application of Statutes
1. Article applicable to criminal facts;
Articles 144(1), 136(1), and 30 of the Criminal Act apply to the rest of the Defendants except Defendant 4:
Defendant 2 and Defendant 4’s obstruction of performance of official duties: Article 136(1) of the Criminal Act
1. Selection of punishment;
Defendant 1, 2, 3, 4, and 5 are punished by imprisonment and each fine shall be imposed on the rest of the Defendants.
1. Handling concurrent crimes;
Defendant 2, 8, and 16: The latter part of Article 37 of the Criminal Act and Article 39(1) of the Criminal Act
1. Aggravation for concurrent crimes;
Defendant 2, 3, 8, 9, 19, and 20: the former part of Article 37 of the Criminal Act, Article 38(1)2, and Article 50 of the Criminal Act
1. Detention in a workhouse;
Defendant 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23 of the Criminal Act
1. Suspension of execution;
Defendant 1, 2, 3, 4, and 5: Article 62(1) of each Criminal Act (see, e.g., Supreme Court Decision 2006Da1489
1. Order of provisional payment;
Defendant 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23 of the Criminal Procedure Act
Judgment on the argument of the defendant and defense counsel
1. Summary of the Defendants and their defense counsel's assertion
A. Paragraph 1 of the facts charged
(1) The Defendants did not have conspired to interfere with the performance of official duties in advance, and the employees of the National Intelligence Service, at the time of the execution of the warrant, either entered a parliamentary room or made an oral declaration of intent under the circumstances where 30 or more National Intelligence Service employees, including the Defendants, have different up to 17 hours, and did not exercise multiple force. The Defendants did not recognize that National Intelligence Service employees did not present the warrant and identification card, and did not commit acts of obstructing official duties such as assault, etc.
(2) As the NIS employees did not present a warrant and identification card when executing a warrant of search, seizure, and verification, or carried out unlawful performance of official duties by controlling Defendant 3, 13, and 20’s access to the Assembly room, which is a public official belonging to the National Assembly or a member of the National Assembly belonging to △△△△△ Party, who is entitled to access the Council room, as a secretary of the National Assembly, the NIS employees cannot be established
(3) The Defendants’ act is a legitimate act under Article 20 of the Criminal Act, which is an act or passive resistance due to duties or resistance, and is merely an act by opening a parliamentary room without presenting a warrant by the NIS employees.
B. Paragraph 2 of the facts charged
(1) The Defendants did not have recruited the Defendants in advance to stop the execution of the arrest warrant by the NIS employees. In the situation where there were more than 50 National Intelligence Service employees and several reporters, the Defendants, including the Defendants, did not exercise multiple force due to the inside and outside of the NIS employees. The Defendants did not recognize that the NIS employees did not present the warrant and identification card, and did not commit acts of obstructing the performance of official duties, such as assault, etc.
(2) Since Nonindicted 1’s National Assembly member already promised to voluntarily attend the court before the arrest warrant was issued, the NIS’s employees violated the due process of law, such as: (a) Nonindicted 1 member was sufficiently informed of the schedule for the examination of the quality of the warrant, and (b) Nonindicted 1 member was sufficiently required to demand his attendance; (c) and (d) Nonindicted 1 member was carrying with him a dangerous object without presenting a warrant and identification card; and (d) he did not comply with the principle of proportionality in the execution of the warrant, and thus, (e) committed unlawful performance of official duties,
(3) The Defendants’ act constitutes legitimate act under Article 20 of the Criminal Act, which is either an act or passive resistance due to one’s duty.
C. Paragraph 3 of the facts charged
(1) Since the facts charged were not specified since it is not indicated that the injured public official who was physically sealed by Defendant 2 and that part of the body was sealed, it constitutes a violation of the provisions of the law.
(2) Defendant 2 merely resisted several National Intelligence Service investigators who want to commit a crime of obstructing the performance of official duties, and did not exercise any assault that constitutes the crime of obstructing the performance of official duties, such as actively harming or destroying investigators. Although Defendant 2 did not constitute a threat of harm, it did not constitute a threat of harm, but did not make intimidation since the victim investigators did not feel fear because it did not seem to have caused fear.
D. As to the charge No. 4
Defendant 4 stated that the National Intelligence Service employee forced the employees of the NIS to carry out the search and seizure of an officetel, and forced them to enter the office without notice to the Defendant, and forced them to illegally enter the office, through his defense counsel, the illegality of the search and seizure commenced without lawful notice and participation procedures and the articles irrelevant to the facts charged, in particular, the seizure of one’s own articles that are not subject to seizure, and cooperation in the investigation for 12 hours or more, and even though it was explained that the cash seized by the employees of the NIS was commercial rent deposit, it was difficult for the NIS employee to proceed with the new search and seizure procedures, and it was difficult for the NIS employee to obtain a new search and seizure warrant, and did not constitute obstruction of performance of official duties because he did not assault or threaten the investigators who intentionally enter the toilet, and thus, did not constitute obstruction of official duties.
2. Determination
A. Paragraph 1 of the facts charged
(1) Whether the obstruction of performance of official duties exists such as conspiracy, multiple force, assault, etc.
(A) The conspiracy, which is a subjective element of the co-principal, is sufficient when there is an implicit communication between accomplices on the joint execution of a crime directly or indirectly, and it does not necessarily require the accomplices to gather in advance at a certain place and determine their own share in advance. Although there was no process of the whole conspiracy, if the combination of opinions is carried out in order or impliedly between several persons, it is recognized.
On the other hand, the crime of obstruction of performance of official duties under Article 144(1) of the Criminal Act is established by assaulting or threatening public officials who show the power of an organization or a large number of people or who carry dangerous things and perform their duties. The term "cover" in this context refers to the number of people who are gathered to the extent that it is not possible to form a group, and the term "defensiveness" means the perception of the ability sufficient to suppress the people's will to the other party, and it does not necessarily require that the other party's intention is practically controlled. The term "Assault" includes not only the exercise of direct tangible power against public officials, but also the exercise of indirect tangible power.
(B) According to the evidence duly adopted and examined by this court, around 08:10 on August 28, 2013, the NIS employee obstructed the entry of the NIS employee into the office of Nonindicted 1 and Nonindicted 2, and proposed a warrant and identification card to Nonindicted 2, and attempted to execute the warrant of search and seizure of Nonindicted 1’s office, etc., upon the request of the Director of the National Assembly Protection Division by refusing to open the entrance. However, the number of persons related to the △△△△△△△△△△△△△△△△△△△△△△’s office employees, including Defendant 8, 9, and 19, interfered with the entrance of the NIS employee by preventing the NIS employee from entering the office of Nonindicted 1 and interfering with the NIS employee’s body, including Defendant 3, 13, and 20, etc., and his defense counsel’s participation in the execution of the warrant.
As above, in light of the fact that the NIS employees presented warrant and identification cards to Nonindicted 2, and 10 persons related to the △△△△△ Party including the Defendants used tangible power, such as keeping the body of the NIS employees in order or blocking the execution of search, seizure and verification warrants in order or simultaneously outside the office, etc., it can be sufficiently recognized that the Defendants’ recruitment, awareness of the performance of official duties, and assault by multiple force has interfered with the performance of official duties. Accordingly, the above assertion is rejected.
(2) The legality of performing official duties
(A) Pursuant to Articles 219 and 119 of the Criminal Procedure Act, a public prosecutor or judicial police officer may prohibit access by others during the execution of a warrant of search and seizure, and may allow persons who have violated the above provisions to leave the place, and may either open or take other necessary measures in the execution of a warrant of search and seizure pursuant to Article 120 of the same Act.
(B) According to the evidence of the judgment, the NIS employees issued a warrant of search, seizure, and verification of search and seizure of Nonindicted 1 and Nonindicted 1’s assistant officers to Nonindicted 2’s offices, etc. on August 28, 2013, and presented the warrant of search, seizure and verification of search and seizure to Nonindicted 2 and Nonindicted 2’s offices, etc. on or around August 28, 2013. On the same day, Nonindicted 33 members of the △△△△△△△△△△△△ Party presented the warrant of search and seizure verification to Nonindicted 1 and the staff of the NIS attempted to enter the office to enforce the warrant of search and seizure of Nonindicted 1’s office, and prevented them from entering the office, and control the entry of the office for the execution of the warrant.
As above, the National Intelligence Service employee’s attempt to enter the office to execute a warrant of search, seizure, and verification as well as preventing persons related to the △△△△ Party from entering the office and controlling access after entering the office is a legitimate disposition necessary for the execution of the warrant. Thus, the above assertion against this is rejected.
(3) Whether the act was legitimate
Article 20 of the Criminal Code refers to an act that is deemed justifiable in light of social norms. Whether certain act is justified as a legitimate act, and the illegality of a certain act should be determined on an individual basis by reasonably considering the motive or purpose of the act, the reasonableness of the means or method of the act, the balance between the protected interests and the infringed interests, the fourth urgency, and the fifth supplementary nature that there is no other means or method than the act.
However, as seen earlier, insofar as the Defendants exercised tangible power to interfere with the lawful performance of official duties by the NIS employees who intend to execute a warrant of search, seizure, and verification issued by a judge, it cannot be deemed that the means is appropriate, urgency, and supplementary requirements are not satisfied, and the Defendants’ act does not constitute a justifiable act. Accordingly, the above assertion is rejected.
B. Paragraph 2 of the facts charged
(1) Whether obstruction of performance of official duties exists, such as conspiracy, multiple force, recognition of performance of official duties, assault, etc.
On September 4, 2013, the evidence reveals that the National Intelligence Service employee arrived at the office of Nonindicted Party 1 for the purpose of executing the arrest warrant against Nonindicted Party 1 on September 19, 2013, and the National Assembly’s motion to arrest Nonindicted Party 1 was passed and the arrest warrant is to be executed, and the number of persons related to Nonindicted Party 1 was already gathered in front of the office and prevented the entrance. The National Intelligence Service employee presented a warrant to Nonindicted Party 15, etc., and carried the warrant into the office. However, the above △△△△△△△△△ Party employees, including the Defendants, failed to enter the office for a considerable period of time after gathering the clothes of the National Intelligence Service employees and pushing the employees’ body.
According to the above facts, the Defendants were aware of the fact that the NIS employees were trying to execute the arrest warrant against Nonindicted Party 1, and as long as several persons including the Defendants exercised force to the NIS employees to obstruct the execution of the warrant in order or implied communication, it can be sufficiently recognized that they interfered with the performance of official duties by assaulting the Defendants’ invitation and by multiple force. Thus, the above assertion is rejected.
(2) The legality of performing official duties
According to the evidence, the National Intelligence Service employee issued a arrest warrant to Nonindicted 1 by Nonindicted 14, and presented the arrest warrant to Nonindicted 15 and his/her secretary Defendant 4 on September 4, 2013. On the same day, around 19:40, it can be acknowledged that the employee presented the arrest warrant to Nonindicted 1 and notified the gist of the offense, and given the opportunity to defend himself/herself (Articles 209, 200-5, and 72 of the Criminal Procedure Act). As long as the NIS employee complies with the above procedure under the Criminal Procedure Act in executing the arrest warrant to Nonindicted 1, it is legitimate performance of official duties. Accordingly, the above assertion contrary to this is without merit.
(3) Whether the act was legitimate
As seen earlier, insofar as the Defendants exercised tangible power in order to obstruct the legitimate performance of official duties by the NIS employees who intend to enforce a warrant of arrest issued by a judge, the Defendants’ act cannot be deemed as constituting a justifiable act, as long as the means are reasonable, urgency, and supplement are not satisfied. Accordingly, the aforementioned assertion cannot be accepted.
C. Paragraph 3 of the facts charged
(1) Whether the facts charged are specified
The purpose of Article 254 (4) of the Criminal Procedure Act, which requires the person to have specific elements of the facts charged, is to facilitate the exercise of the right of defense by specifying the scope of the defendant's defense. Thus, the facts charged are sufficient when comprehensively considering the specific elements of the crime, to state the specific facts that meet the requirements for the composition of the crime to the extent that they can be
In the instant case, as long as the date and place of the crime was specified in this part of the facts charged, and the specific criminal acts of the Defendant also stated that “the physical body of the NIS employees was faced by bathing and physical body,” the facts charged cannot be deemed as not specifying the facts charged solely on the ground that the National Intelligence Service employee who suffered the damage was not specified in detail, and cannot be deemed as impeding the Defendant’s exercise of right to defense. Accordingly, the aforementioned assertion is rejected.
(2) Whether performance of official duties exists
In light of the evidence and records, Defendant 2 attempted to enter the NIS employees for the purpose of preventing the execution of a warrant in front of Nonindicted 19’s dwelling entrance, where the NIS employees controlled access for the execution of the warrant for search, seizure, and verification of evidence. Defendant 2 took a bath to the NIS employees who restrain the performance of the warrant, and met their body and met their body by hand and body. According to the above facts acknowledged, the Defendant’s exercise of force on the body of the NIS employees who were lawful performance of official duties. Thus, it can be sufficiently recognized that the Defendant exercised the force on the body of the NIS employees who were in a lawful performance of official duties. Accordingly, the above assertion is not acceptable.
D. As to the charge No. 4
In light of the evidence and records, the National Intelligence Service employees asserted that the search and seizure warrant was executed in Mapo-gu Seoul ( Address 2 omitted) by Nonindicted 1’s holder, and Defendant 4 was the actual resident of the above residence and the seized goods were his own goods. The employees of the National Intelligence Service issued a new search and seizure warrant for seizure subject to seizure of genetic information, such as Nonindicted 1 and the Defendant’s body, brushes, body body, etc., to confirm the actual resident of the above officetel, and tried to execute the warrant. However, Defendant 4 entered the toilet with brus, body features, etc., and destroyed the materials in the toilet, and the employees of the National Intelligence Service who want to open the toilet to open the toilet. Defendant 4 stated that “I am mad, Mad, Mad, Mad, Mad, Mad. When entering the toilet, I am able to find the fact that the employees of the National Intelligence Service opened a new warrant for seizure and display the staff of the National Intelligence Service in favor of the staff.
According to the above facts, Defendant 4 issued a warrant of search, seizure, and verification of objects that can obtain genetic information and exercised indirect and indirect tangible power to the staff of the National Intelligence Service who lawfully executes the warrant. Thus, it can be sufficiently recognized that he/she committed assault and intimidation constituting the crime of obstruction of performance of official duties. Accordingly, the above assertion is rejected.
Reasons for sentencing
The crime of this case is a case that interferes with the performance of official duties by showing multiple power to the National Intelligence Service employees who lawfully execute the warrant issued by the Defendants, and by assault and intimidation, etc., and thus, it is not easy to say that the foundation of the warrant system is shaking and impeding the function of the State to maintain the criminal justice and legal order.
However, Defendants 1, 2, 3, 4, and 5 do not actively and aggressively use violence, rather than using violence in a narrow place, and used passive violence as a substitute to the extent that they are able to block their body and wear clothes or build their body. The Constitutional Court’s decision on the dissolution of the △△△△△ Party was made on December 18, 2014 and held in office as of December 18, 2014, and all the status within the political party have disappeared, and Defendant 3, 5, 7, 13, 22, and 23 did not have any history of criminal punishment. In full view of all the circumstances, Defendant 1, 2, 3, 4, and 5 decided to select imprisonment with prison labor for each applicable sentence and suspend its execution once. The remaining Defendants shall be punished by a fine, and the same sentence as the order was determined.
Judges Seo-ju