2017Gohap328 Injury resulting from special obstruction of performance of official duties

A

A leapment (prosecutions) and public trial on a fump)

Attorney B, Attorney C, Attorney D

Law Firm E, Attorney F

June 16, 2017

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

However, the execution of the above punishment shall be suspended for three years from the date the judgment of this case became final and conclusive.

Two gas bags (No. 5) seized shall be confiscated.

Punishment of the crime

The defendant is a person who acts as the representative of "G" (hereinafter referred to as "G") for the purpose of organizing the right holder with the belief of free democracy and the world market protection.

At around 11, 11:00 on March 11, 2017, the Defendant, at the police around 11:0 on March 11, 201, posted a letter stating that “The Defendant took measures to restrict the use of metal flag bars (3m 48cm in length), which was scheduled to be used in an assembly for the invalidation of impeachment, as dangerous articles, and take measures to temporarily keep them for the assembly supplies,” and that on the same day, at around 11:36 on the same day, the Defendant her flaps to a flac box.”

The Defendant, along with G members, was 50 persons, and around 12:15 on the same day, tried to move the 'measures to restrict the use of the 'metallic flag assembly supplies by the police' in front of the police box in Jung-gu Seoul, Jung-gu, Seoul. On the same day, the Defendant laid down 2 of the temporary group installed in loading a truck, cut 2 of the gasoline (20 liter) under the annual group, and opened lids in the annual group, and added lids to the police officers, such as "many gasoline.................., the Defendant was trying to put the bnd and 3 police officers to the safe place of gasoline by cutting the strings into the train group. However, the Defendant loaded the gasoline pool.

On the other hand, in order to restrain the act of intimidation of the defendant by the police officers belonging to the fourth unit H of the Seoul Metropolitan Police Agency, and prevent the damage of human life by fire, the string of the truck loaded with the string of the above string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the 4th unit of the Seoul Metropolitan Police Agency, the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the st

As a result, the defendant carried gasoline and gater, which are dangerous objects, and threatened police officers I with intimidation and assault, thereby hindering legitimate execution of duties for the prevention and control of crime, and I put up two frameworks of right-hand gale, which requires four weeks of treatment.

Summary of Evidence

1. Partial statement of the defendant;

1. The witness I, J and K's each (part) legal statement;

1. First police suspect examination protocol regarding L;

1. Each police statement of M, N,O, P, Q, R, and S;

1. Each written statement of T, U, and V;

1. Records of seizure by each police (27 pages, 140 pages of evidence);

1. Documentary evidence (copis and evidence list Nos. 55), documentary evidence (copis and evidence list Nos. 57), and video (Evidence List No. 116);

1. Seized gasoline copies, SNS photographs, rain photographs, national flag photographs; and

1. A copy of the assembly report or a temporary storage certificate;

1. Each report on internal investigation (related to verifying the details of the report on assembly and collecting the national flag);

1. A medical certificate;

Application of Statutes

1. Article applicable to criminal facts;

Articles 144(2) (main sentence) and (1), and 136(1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. Confiscation;

Judgment on the issue of Article 48 (1) 1 of the Criminal Act

1. Summary of the defendant and defense counsel;

A. There was no dangerous situation in which a police officer need to take a direct measure on the date and time of the crime indicated in the facts charged, and there was no imminent situation in which it is impossible to prevent any grave damage to life, body, or property other than the method of direct restraint, and the Defendant did not issue a necessary warning. Therefore, the act of forcing the Defendant to recover gasoline from the Defendant is an illegal official duty that does not comply with the procedure stipulated in the Act on the Performance of Duties by Police Officers.

B. As stated in the facts charged, the Defendant cited gasoline as in the facts charged [it did not lring gasoline towards its face, and, in the process of recovering the gasoline, there was a string of gasoline. In addition, the Defendant’s opening a lid unit in the gasoline and opening a stringr was conducted before police officers, such as I, etc. initiate the performance of duties for the prevention and control of crimes. Thus, the Defendant did not assault or threaten the gasoline.

C. As stated in its reasoning, the injury suffered is irrelevant to the Defendant’s act, as it is due to the fact that he gets off the string of gasoline and was separated from the strings, thereby losing the center by tolerance and lowering the floor.

2. Whether it is a lawful performance of official duties;

A. Article 6(1) of the Act on the Performance of Duties by Police Officers provides that “If a police officer deems that a criminal act is about to be committed in front of the police officer, the police officer may issue a warning to the person concerned to prevent the criminal act, and if it is urgently required due to the act’s danger and injury to human life and body, or grave damage to property, the police officer may restrain the act.” In order for a police officer’s restraint measure to be deemed lawful performance of his/her duties, it can be objectively acknowledged that the act subject to criminal punishment can be conducted in front of the snow, and there is a situation where the act is likely to cause harm to human life and body or grave damage to property unless the act is avoided, and thus, it must be an imminent situation in which it is difficult to prevent the above result except by the method of direct restraint. However, whether a police officer’s restraint is legitimate should be determined based on the specific situation at the time of the measure, and it should not be determined after pure objective criteria (see, e.g., Supreme Court Decision 92Do937, Jun. 13, 2013).

B. In full view of the evidence duly admitted and examined by this court, the following facts or circumstances are revealed.

1) The Defendant, who was seized (temporary custody) at a G assembly, had 50 or more persons including members, etc. who were employed in the police box before the plenary police box in its holding. Accordingly, the police officers of H, such as I, dispatched to the place of the said house to be called out and served in preparation for the situation around the G members.

2) The G representative: (a) the Defendant, who is a representative, tried to set off a string floor up on the temporary group installed at the truck onto the train with a large volume; (b) attempted to put the string floor of the steel board to police officers; and (c) followed by 201: (a) the Defendant, at the same time, tried to put two gasoline-types to the front end; and (d) the Defendant, “I am off the gasoline...................., in fact, the Defendant, at the time, committed an act that seems to put the string from the string machine (i.e., the Defendant, as well as G members L, who were on the temporary group, try to speak the above Defendant’s act).

3) The police officers were immediately taking measures to recover gasoline from the Defendant’s behavior. In W, K, who ordered to retrieve gasoline to the lower police officers, stated in this Court that “at the present site, not only the Defendant did not have enough time to issue a warning because not only the Defendant was 50 members at the present site and there was an imminent situation that could cause harm to the general public and police officers’ life and body. If the Defendant was to issue a warning and recover gasoline, it would not have been carried out proper official duties.”

C. If the facts are identical to the above, the Defendant’s act was conducted in order to secure the time required for a port as alleged in the above is extremely subjective circumstances. From the standpoint of the police officers at the site, it seems that the Defendant’s act is likely to cause harm to people’s life or body unless the Defendant’s act is avoided, and thus, it would not have to be judged in a state where it is impossible to prevent the result except for the method of recovering gasoline. Therefore, it is reasonable to deem that the act of collecting gasoline is legitimate execution of duties in accordance with the requirements and procedures stipulated in the Act on the Performance

3. Whether it is recognized as violence or intimidation;

(a) Opening gasoline lids and sounding them by racks;

1) In the crime of obstruction of performance of official duties, intimidation refers to an act of notifying harm and injury for the purpose of causing fears to the other party. The content of harm and injury notified should be objectively made to the other party feel fear by taking into account various circumstances as at the time of the act, such as its circumstance, surrounding circumstances at the time of the act, the offender’s tendency, and the degree of friendship with the other party, status, etc., and such intimidation is insignificant and thus does not constitute intimidation (see, e.g., Supreme Court Decision 2010Do15986, Feb. 10, 2011).

2) Police officers, such as I, are called to the site of this case and serving in preparation for the situation is obvious that they are performing the duties of police officers for the prevention and control of crimes (on account of their own, preparation acts immediately before commencing the performance of duties shall also be deemed to be included in ‘the performance of duties'). In the situation where the persons and the police officers are replaced, it is sufficient for police officers, such as I, etc. to open gasoline lids and open lids and put fire and have police officers feel fear and danger, and thus, the above act of the defendant constitutes ‘Intimidation in the obstruction of performance of duties' in the crime of obstruction of performance of duties.

(b) Miscellaneous a gasoline in order not to put it in a gasoline;

1) In the crime of obstruction of performance of official duties, an assault in the crime of obstruction of official duties refers to an act of exercising force against a public official who performs official duties (see, e.g., Supreme Court Decision 81Do326, Mar. 24, 1981). The assault refers to an act of exercising force directly or indirectly against a public official (see, e.g., Supreme Court Decision 81Do326, Mar. 24, 1981); and as long as it is against a public official, it does not necessarily need to be an exercise of force against a public official; and as long as it is against a public official, it is indirectly or indirectly against a third party, not directly exercising force. The intent of the crime of obstruction of official duties lies in recognizing the fact that the other party is a public official performing his/her duties, and the fact that he/she uses violence or intimidation against the said public official, and the perception is uncertain, even if it is not clear, it should be deemed that there is a so-called dolusent intention (see, 197Do197).

2) In full view of the evidence duly admitted and examined by this Court, the following facts or circumstances are revealed.

A) Police officers, such as I, etc.: (a) the Defendant, while working in the field in preparation for the situation, did the act that the Defendant seems to open a gasoline lid and put a fire on the bridge; and (b) the Defendant was placed in the instant truck loaded with the left hand and left hand with a smoke railing. In such a situation, the Defendant was sufficiently aware that he is performing duties to prevent or stop his own fire-fighting.

B) Nevertheless, in order to prevent the Defendant from recovering the gasoline, the Defendant did not lick the knick from gasoline, and left the lower side of the part above the left part into the body with the left hand, and in the process, gasoline was converted into the face of I by the wind, which is separated from gasoline.

C) Considering the location and attitude of the Defendant’s gasoline and strings, and the weight of gasoline strings, it seems that it was difficult for the Defendant to recognize that the Defendant could lose this center and fall under the string of loaded gasoline by separating strings or putting gasoline strings.

3) According to the above facts, this part of the Defendant’s act is deemed to have exercised force beyond the passive resistance, which is likely to obstruct the police officer’s practical performance of duties, and it is reasonable to deem that the Defendant was able to have unexpectedly predicted that the other party may suffer injury by his own act even if he did not intend to directly assault the victimized police officer.

4) Meanwhile, this part of the facts charged is that the Defendant committed an assault by putting gasoline over I’s face. However, according to the video press photo (Evidence Nos. 2, 3 and 7) submitted by the Defendant, the Defendant is not intentionally putting gasoline over to I, but it seems that gasoline has been accumulated into the wind where the heading part is separated automatically as indicated in its reasoning, so the specific contents of this part of the Defendant’s act are recognized as stated in its reasoning without changing an indictment to the extent that it does not pose any substantial disadvantage to the Defendant’s exercise of his/her right to defense.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to fifteen years; and

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

[Determination of Punishment] Crimes of Obstruction of Performance of Official Duties, Death or injury resulting from Special Obstruction of Public Duties, Type 1 (Bodily Injury or Injury resulting from Special Obstruction of Public

【Special Convicted Person】

[Scope of Recommendation] Two to Four years of imprisonment (Basic Area)

3. Determination of sentence;

The crime of this case committed by the representative of a civic group and the defendant who acts in writing with the members of the police who are going to work in preparation for the situation while holding an assembly of a port against the police, and committed an act in favor of the police officers who want to open a lid of gasoline and attach a fire on the rater, and suffered bodily injury to the police officers who want to recover gasoline for the prevention and control of the crime. Considering the method and risk of the crime, importance of the result, etc., it is a case where the defendant must be held liable significantly to the defendant because the possibility of criticism and the degree of illegality is not weak.

However, in the process of resisting the seizure of the national flag to the police, the Defendant came to commit the crime in a timely and contingent manner, and it seems that the victimized police officers were not able to duplicating gasoline to the police officers, and did not have any intent to commit an injury. The Defendant has been able to endeavor to recover from damage by taking his/her own responsibility for committing acts contrary to his/her own belief and belief through confinement life.

In addition to these various circumstances, the defendant's age, character, conduct and environment, motive and consequence of the crime, circumstances before and after the crime, etc. are considered, and the punishment is determined as ordered by the order beyond the minimum of the recommended sentencing criteria, and the execution thereof is suspended.

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

1) As seen thereafter, the specific content of the act of assault is partially different from the facts charged to the extent that the identity of the basic factual relations is recognized.