2014 Gohap203, 253 (Joints)

Special obstruction of performance of official duties (Name of crime recognized: obstruction of performance of official duties, injury) and official duties;

Detainment, general traffic obstruction, property damage and damage;

1.5 1. 5 1. 1. 1. 41

Accommodation-si

[Reference domicile-si]

F.I.D., Kim In the case of the Republic of Korea (prosecutions), Kim Jong-il, and J. J. (Trial)

Attorney Son Jin (National Election)

July 16, 2014

A defendant shall be punished by imprisonment for one year.

Five stone with seized stone (No. 1) shall be confiscated.

Of the facts charged in the instant case, the charge of general traffic obstruction is acquitted.

Criminal facts

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1. Performance of official duties and injury;

On April 17, 2014: (a) at the court of Suwon District Court 310, the Defendant: (b) around 00, 1 year, who was sentenced to the suspension of execution for Defendant’s death, such as obstruction of performance of official duties, from the above criminal9 single presiding judge of the court; (c) was placed in front of the Defendant who was present in the court to the presiding judge in order to resist the presiding judge; and (d) was placed in front of the Defendant who was present in the court room to the left; (d) was her face to the court room and the court room; (e) was 1 year, and 1 year, suspended execution for Defendant’s death, such as obstruction of performance of official duties against the Defendant; (e) was placed in front of the prosecutor’s left part below the water surface at the court; (e) was placed in front of the water station at the time, and (e) was placed in the victim’s face at least 4 years to the maximum number of 5 meters per share; and (e) was placed in front of the court room at the 2nd of the victim.

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2. Damage to property;

On April 9, 2014, at around 25, the Defendant destroyed the columns created by the victim Kim8 at the port of the wife population, in order to install a vehicle breaker for the purpose of crime prevention, using a watch. The summary of the evidence was destroyed by using a watch.

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1. The defendant's partial statement in court;

1. Each legal statement of the witness decoration and the Do governor in Jeju Special Metropolitan City;

1 . 최發袋에 대한 검찰 진술조서

1. Each investigation report (the sequence 4, 15, 16, 24, 29 of the evidence list);

1. Each photograph (the sequence 5 in the list of evidence);

1. Five existing stones with seized stones (No. 1);

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1. The defendant's partial statement in court;

1. Legal statement of the witness Kim 88

1. Each police protocol against Kim88

1. A complaint;

Application of Statutes

1. Relevant Articles of criminal facts;

Article 136(1) of each Criminal Code (a point of obstructing performance of official duties), Article 257(1) (a) of the Criminal Code, and Article 366 of the Criminal Code (a point of causing an injury), Article 366 of the Criminal Code (a point of causing an injury)

1. Competition;

형법 제40조 , 제50조 ( 피해자 최靈發에 대한 공무집행방해죄 및 상해죄 상호간 , 형이

Punishment for a more severe injury)

1. Selection of penalty;

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Punishment for Bodily Inflicting Punishment)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. As to the crime of obstruction of performance of official duties against the victim AO○

A. Summary of the argument

The defendant, while being towed by the court due to the court circumstances, etc. at the time, had sold his arms at the bottom of the court, and the victim, who is the public trial prosecutor, had no intention to commit assault against the public prosecutor who performs his duties.

B. Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence revealed earlier, the defendant and his defense counsel’s above assertion is without merit, since the defendant could sufficiently recognize the fact that he committed assault against the victim who was performing his duties as a public official.

① In an investigative agency and this court, while waiting in the waiting room for the Defendant under detention at the time of the instant crime, the Defendant appeared to open a waiting room in the court and to observe the draft of the court, and consistently stated that the Defendant, as drinking, went into the court with other prison officers and immediately brought the Defendant out of the court, while entering the court. There is no other circumstance to deem that the highest red statement as above is not reliable as a false statement.

1. At the time of the instant crime, the Defendant stated in this court that, at the time of the instant crime, at the time of the Defendant’s assaulting the victim, the Defendant was unable to directly witness the victim, but at the same time, there was an action between the victim and the Defendant, asking the victim whether the victim is fine or not, and the Defendant also stated in this court that, at this court, the Defendant had a physical contact between the Defendant and the victim.

③ The highest Hong Power stated in this Court that, in addition to the Defendant’s assaulting of the victim and the other correctional officers, the Defendant was removed from the Defendant. He also stated in this Court that, in the process of leading the Defendant out of the court, the Defendant did not have any movement with the victim while being towed out of the court, but the Defendant was sentenced to this judgment and the Defendant was able to move to the presiding judge. The Defendant’s name was followed by the Defendant’s name, who was booming the Defendant from leaving the court. Accordingly, it is difficult to believe that the correctional officer brought the Defendant out of the court, and then, it is difficult to believe that the Defendant’s statement was made by the Defendant that the Defendant was able to take out of the court.

④ In light of the fact that the victim, at the time of committing the instant crime, was seated in the prosecutor’s seat at the public trial and was performing the duties of the public trial examination, the Defendant appears to have been sufficiently aware that the victim was performing his duties as a member of the public trial at the time of assaulting the victim.

2. As to the obstruction of performance of official duties and the crime of injury to the victim’s maximum head

A. Summary of the argument

1) Not only the victim illegally tried to bring the defendant into the court, but also it is difficult to view the maintenance of order in the court as a correctional officer’s duty, so the victim is not a public official performing his duties.

2) As long as the victim suffered injury, it cannot be deemed that the victim’s health had been infringed.

3) The Defendant’s act of deceiving the victim constitutes self-defense or legitimate act to resist an unlawful act.

B. Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence revealed earlier, the Defendant’s and the defense counsel’s aforementioned assertion are without merit, since it is sufficiently recognized that the Defendant had been duly performing his duties as a public official and inflicted an injury on the victim.

(1) According to Article 2 subparagraph 1 of the "Rules on Correctional Officers' Duties" enacted to promote correction and edification of convicted prisoners and their sound rehabilitation into society, and to prescribe matters necessary for treatment and rights of prisoners and operation of a correctional institution, a correctional officer shall take charge of confinement and execution of a sentence, guidance of prisoners, treatment and safe guard, etc. of prisoners. However, according to Article 81 (1) and (2) of the Criminal Procedure Act, a warrant of detention shall be executed by a judicial police officer under the direction of a public prosecutor, but in case of urgency, the presiding judge, etc. may direct a junior administrative officer, etc. to execute it. In this case, a junior administrative officer, etc. may request a correctional officer, etc. to assist a correctional officer, etc. In addition, according to Article 61 of the Court Organization Act, the court may ex officio interfere with the trial of the court or order of detention of a prisoner who seriously damaged the prestige of the court or order of detention within one million won or less, or order of confinement of the prisoner immediately from the court to issue an order of confinement.

.

Meanwhile, according to Article 55-2 of the Court Organization Act, security management units shall be established in the Supreme Court and each court for the maintenance of the dignity and order of the court and for the protection of the court office building. Members of the court security management unit may, when any person in the office building of the court inflicts or intends to inflict any harm on another person's life, body, property, etc., engage in any conduct detrimental to the dignity and order of the court, obstruct or interfere with the legitimate duties of the judge or the court staff, or when intending to commit any other conduct detrimental to the order within the court office building, use physical tangible power or use security equipment, such as security clubs, gas sprayers, etc. to restrain such conduct. In this case, members of the court security management unit may take necessary measures without the direction of the head of each agency or the presiding judge (Article 5 of the Rules on the Establishment, Organization, and Division of Security Management Units).

In light of the contents of such various provisions and the fact that a prisoner who is legally under court attendance is committing or attempting to commit an act stipulated in Article 55-2 of the Court Organization Act within the court room, it is an act falling under the scope of a correctional officer's duties under the "Act on the Expropriation and Execution of Punishment"; where a correctional officer satisfies certain requirements, a correctional officer is in charge of detention or assistance of a person other than a prisoner; and a correctional officer in charge of court attendance and safe guard must observe and assist a presiding judge's order concerning the court attendance and safe guard of a prisoner; pursuant to Article 55-2 of the Court Organization Act and Article 5 (3) of the Rules on the Establishment of Court Security Control Units, Organization and Division of Affairs, etc. of the prisoners, it is urgent and pursuant to Article 5-2 of the Court Organization Act and Article 5 (3) of the Rules on the Establishment of Court Security Control Units, etc. of Each level of institution or a presiding judge's order, and even if a prisoner is not a prisoner, it constitutes legitimate act of execution of official duties.

In this court, the victim who is a correctional officer stated in this court that he was injured by the defendant's injury after attending the court, along with other correctional officers in order to witness the defendant's assault and stop the defendant's assault within the court, while entering the court, and as a legal circumstance, the court security management member of Do, Do, who is a court security management member, in this court, proposed that the defendant would go to the presiding judge after the decision was sentenced, and the defendant would go to the presiding judge after the ruling, leading the defendant to the outside of the court by the correctional officers, including the victim. At the time, the victim did not come to physical contact with the defendant, but the defendant did not go to the court before the court entrance, along with the correctional officers,. The defendant's act of assaulting the defendant within the court building constitutes an act of assaulting another person's life, body or property, etc., or an act of impairing the order and order of the defendant, including the chief judge or the chief judge of the court, when the defendant tried to protect the order and order of the person outside the court.

Therefore, the victim constitutes a case where the victim has assisted the defendant at the implied request of the court security management unit, which is a legitimate control unit, and even if the defendant is not the prisoner, it is reasonable to view that the victim not only belongs to the abstract authority of the victim who is a correctional officer, but also satisfies the legal requirements and methods for the specific execution of duties.

② In light of the fact that the Defendant stated in this Court that the victim had a stone with a stone with a stone, the secter had a half-day sick price per day after the instant crime, and took rest at the house after the instant crime, and stated that the victim was provided with a medical certificate of injury to the effect that the victim was provided about five weeks after the instant crime was committed, and that the victim was issued a medical certificate of injury to the effect that the victim requires approximately two weeks medical treatment after the instant crime was committed, it is difficult to deem that the injury suffered by the victim was false or exaggerated.

③ As long as the Defendant’s removal of the Defendant from the Defendant at the time of committing the instant crime constituted lawful performance of official duties as seen earlier, it is difficult to view that there was an infringement of the Defendant’s body at the time, and in such process, it is difficult to view that the Defendant’s act did not violate the social norms that caused injury to the victim, who is a correctional officer, due to having a stone with a stone, constitutes self-defense or legitimate act.

3. As to the crime of destroying and damaging property

A. Summary of the argument

In fact, since victims Kim 88 lay the pole on the land owned by the defendant for the purpose of installing a vehicle breaker without permission, the net act is to remove the illegal structure on the land owned by the defendant, and it constitutes legitimate act, self-help or self-help.

B. Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence revealed earlier, the above assertion by the defendant and his defense counsel is without merit, since it is difficult to view the damage of the columns owned by the victim as a legitimate act, self-help act, or self-help.

① At the time of committing the instant crime, there was a legal dispute over the ownership transfer registration in the name of the victim with respect to the above land at the time of the Defendant’s sale of the victim. However, the civil judgment became final and conclusive to the effect that the victim was not the Defendant’s ownership, and that the Defendant’s request for reexamination as to the above final judgment was dismissed. As such, it is difficult for the Defendant to claim that the part of the land on which the pillar was installed is owned by the victim under the procedural law.

② Even though the defendant can assert that he is his own possession in relation to the part of the land on which the above pole was installed, if the defendant arbitrarily damaged the part without undergoing the legal procedure for the removal of the above pole installed by the victim, it is difficult to view it as a justifiable act as an act that does not go against the ordinary rules, and it is difficult to preserve the claim against the above part of the land due to the defendant's legal procedure, and it is difficult to say that the act of self-help is allowed. As long as the victim installed the retaining wall and used it as a access road to the above part of the land, it cannot be viewed as a situation where self-help is allowed since the period of time has elapsed since the defendant was lost possession of the above part of the land.

Reasons for sentencing

1. Scope of recommended sentences according to the sentencing criteria;

(a) Bodi injury (Class 1 crime);

[Determination of Type] General Injury to Violence : Chapter 1 (General Injury)

[Special Instigator] Reduction element: Minor injury

In the case of obstruction of performance of official duties:

【Determination of Recommendation Area】 Basic Area

[Scope of Recommendation] Imprisonment of April to June

(b) Obstruction of the performance of official duties (two crimes);

[Determination of Type] 1 Obstruction of Performance of Official Duties (Obstruction of Performance of Official Duties / Compelling of Duties)

【Determination of Recommendation Area】 Basic Area

[Scope of Recommendation] Imprisonment of six months to one year and four months;

(c) The sentencing criteria are not set for the damage and damage of property;

2. Handling of multiple offenses;

Since the crimes for which the sentencing guidelines are set and those for which the sentencing guidelines are not set are concurrent crimes under the former part of Article 37 of the Act, the lower limit of the sentencing guidelines for those crimes for which the sentencing guidelines are set shall apply.

3. Determination of sentence: One year of imprisonment; and

In light of the fact that the defendant assaulted the public trial prosecutor who performed his duties within the court and assaulted the correctional officer who prevented him, and that the police officer who was called out after receiving a report is punished for dispute over the ownership problem of the adjoining land, and that the defendant's obstruction of performance of official duties is not good in the nature of the crime by destroying the brick pole installed by Kim88 on the land that he claimed as his own ownership, the victim's most red is trying to punish the defendant strongly, and the defendant committed the obstruction of performance of official duties and the crime of injury on the part of the police officer who was called out after being sentenced to the suspension of official duties due to the obstruction of official duties, etc., it is inevitable to punish the defendant significantly.

However, it is difficult to view that the Defendant’s health conditions are old, healthy, and that the Defendant’s wife is not good, and that the Defendant’s wife is also in need of blood dose due to kidy diseases, etc., and that the degree of injury caused by the Defendant’s commission of the instant injury is significant. The victim Kim88 stated in this court that the Defendant did not want punishment if the Defendant did not have any longer dispute, and other sentencing conditions indicated in the instant argument, such as the Defendant’s age, character and conduct, health, health status, family relationship, means and result of the crime, etc., shall be determined within the scope of the sentencing guidelines, by taking into account the various sentencing conditions indicated in the instant argument, such as the circumstances after the crime, etc.

The acquittal portion

1. Injury resulting from special obstruction of performance of official duties;

A. Summary of this part of the charges

The Defendant, as stated in the facts of the crime in the judgment, was removed from the above date, at the above time, and at the above time and place, based on the Defendant’s interest, etc., a correctional officer, who belongs to the Suwon Detention House, which was located in the court at the time, and went to the above court room, 5 stone straws, which are dangerous objects prepared in advance, were placed at the face of the victim’s highest heading, and suffered injury, such as 2-4cm emitting an external wound, which requires approximately two weeks of treatment to the victim’s highest heading.

B. Prosecution of the defendant and his defense counsel

The defendant is merely a small stone with a stone, not a dangerous object.

C. Determination

Article 144 of the Criminal Act provides that "a dangerous thing in a crime of interference with public duties" means all things that may be widely used to injure people's life and body even if they are not a deadly weapon (see Supreme Court Decision 84Do2001, 84Do319, Oct. 23, 1984, etc.). Whether a certain thing constitutes "a dangerous thing" should be determined depending on whether the other party or a third party could cause danger to people's life or body when using the thing in light of social norms (see Supreme Court Decision 2010Do10256, Nov. 11, 2010, etc.).

In light of the following circumstances acknowledged by the record, it is difficult to conclude that: (a) the Defendant’s stone dried with the width of 2 to 4§¯ with the width of the stone, which is difficult to see the size thereof; (b) the Defendant not only is the age of 73 years old; (c) the Defendant was faced with the stone with the victim under the circumstances where the body was removed from various correctional officers, including the victim, and the body was not free from the court; and (d) the injury inflicted upon the victim due to the instant crime is difficult to be deemed as serious as an external blood transfusion requiring approximately two weeks medical treatment; and (e) it is difficult to conclude that the above stone dried with the stone was a dangerous thing to the extent that the victim could cause danger to the life or body of the victim by using it.

Therefore, there is no evidence to acknowledge that the defendant carried dangerous articles with the victim and inflicted an injury, so this part of the facts charged constitutes a case where there is no evidence of crime and thus, the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as the defendant found the defendant guilty of the obstruction of performance of official duties and the crime of bodily injury as stated in the judgment within the scope of the same facts charged, the defendant does not

2. Obstruction of general traffic;

A. Summary of this part of the charges

The defendant's and the defendant's wife's top seat, in collusion, interfered with traffic by causing the passage of the vehicle to be impossible by laying the bricks, which are the remaining objects of the damaged pole, at the time and place as stated in the crime No. 2 in the judgment of the court, such as the above paragraph, into the village of electric power generation, at the port of the flag, the village of the above Flag, and at the port of the flag.

B. Prosecution of the defendant and his defense counsel

The place where a wall, etc., which is the remaining object of the pole destroyed by the method as stated in paragraph (2) of the criminal facts in the judgment of the defendant, is illegally designated, and is offered for the passage of the general public. It is difficult to see it, and it is not the land for the obstruction of general traffic.

C. Determination

The crime of interference with general traffic under Article 185 of the Criminal Act is a crime under the legal interest and protection of the traffic safety of the general public. Here, "land" refers to a place of public traffic by the general public, that is, a place of public character in which many and unspecified persons, vehicles, and horses are able to freely pass (see Supreme Court Decision 9Do401 delivered on April 27, 199, etc.).

In light of the foregoing legal doctrine as seen earlier based on the record, it is difficult to readily conclude that a place where a studio, etc. was laid with a brick, etc., which is a remainder of the columns destroyed by a studio, is a road with a public nature for a large number of unspecified people as determined by the general traffic obstruction.

① The place where the Defendant laid a brick, etc. was used as an access road to the village of the source of the power plant, which was sold by Kim8 through the housing site project, as part of the Dog-ri land on the port of the location of the Dongg-ri, which was registered under the name of Kim88. The above access road is the only access road leading to the village of the source of the power plant, and is prohibited from moving to another place than the above electric source village through the above access road.

② The above access road was used only by about 20 households residing in the above electric source village. The relation was that there was no need to use the above electric source village, and Kim88 installed two brick columns in the entrance of the above access road to prevent the outside person from having access by installing a vehicle breaker and a guard station on the above access road. The wall columns destroyed by the defendant are one of the two columns installed by Kim88.

③ From this legal point of view, Kim 80 stated that the above access road was set up and announced as the access road under the Building Act at the time of permission, but it was owned by himself, and thus, it was no problem to prevent the outside person from opening and leaving the access road. In light of the above statement, it is reasonable to view the part of the road as the access road created solely for the entry into a specific housing complex. Therefore, it is difficult to readily conclude that the above road is a place with a public nature in which many and unspecified persons, vehicles, and horses are free to enter.

Therefore, there is no evidence to acknowledge that the defendant interfered with the traffic of public places for the traffic of the general public. Therefore, this part of the facts charged constitutes a case where there is no evidence of crime and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure

jury verdict and sentencing opinion

1. A verdict of guilt or innocence;

A. Obstruction of the performance of official duties against victims AO○

- - Ten persons:

- Not guilty: Seven persons (for a jury's unanimous trial)

(b) Injury resulting from special obstruction of performance;

- - Ten persons:

- Not guilty: Seven persons (for a jury's unanimous trial)

○ Recognized Crime: obstruction of Performance of Official Duties and Injury

- "guilty": Seven persons (one jury only).

- Not guilty: 0 persons

(c) Damage to property;

- "guilty": Seven persons (one jury only).

- Not guilty: 0 persons

(d) General traffic obstruction;

- - Ten persons:

- Not guilty: Seven persons (for a jury's unanimous trial)

2. Opinions on sentencing

- Imprisonment with prison labor for up to six months, one year of stay of execution: Three jurors;

- One year of imprisonment, two years of stay of execution: Two jurors;

- One year of imprisonment: two jurors;

It is so decided as per Disposition for the above reasons.

For judges of the presiding judge;

Judges Cho Jae-man

Judge Park Jong-hun