2016Do9660 Performance of Official Duties

1. A;

2. B

Prosecutor

Seoul Northern District Court Decision 2015No2048 Decided June 3, 2016

March 30, 2017

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined.

1. In the crime of obstruction of performance of official duties, violence includes not only the exercise of direct tangible force against public officials, but also the exercise of indirect tangible force (see Supreme Court Decision 98Do662 delivered on May 12, 1998, etc.).

2. In full view of the facts stated in its reasoning, the lower court determined that the Defendants’ act alone could not be said to have committed an assault against a police officer exceeding the degree of force, considering the Defendants’ content of the act, the location and situation of police officers at the time of the act, and the continuous time when the Defendants’ act continued.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The following facts are acknowledged according to the evidence duly adopted and examined by the first instance court and the lower court.

① The Defendants were sent back to the police station with a 112 report, and the Defendants did not want to pay the drinking value and to be punished for the main place of business. However, the Defendants, without complying with the notification, recommended the Defendants to return home to the Defendants. In short, the Defendants, without having complied with the notification, sent back to the police station with a 112 report.

② In order for police officers D, etc. to start the patrol vehicle to go out of the main place and start the patrol vehicle, Defendant A, who was at hand, failed to start the patrol vehicle by putting it to the right side between the patrol vehicle and leaving the patrol vehicle? “In the end, Defendant A was unable to start the patrol vehicle with his body attached to the right side side of the patrol vehicle while leaving the patrol vehicle.”

③ The Defendant B obstructed Defendant B from proceeding with the Defendant 15 minutes of the patrol car, such as putting the blick door on the front part of the blacks and the front part of the blacks, and putting the blick on the front side.

④ At the time, police officers did not seem to have exercised unfair public authority against the Defendants. On the other hand, the Defendants continued to brut police officers, such as brushing or disregarding police officers from the time immediately after the dispatch of police officers, and continued to do so by repeatedly repeating their desire.

B. Examining the above facts in light of the legal principles as seen earlier, there is considerable room to view the Defendants’ act of obstructing the progress of patrols as above constitutes an assault in the obstruction of performance of official duties as an indirect exercise of force against police officers who perform their duties.

C. Nevertheless, solely on the grounds stated in its reasoning, the lower court deemed that the Defendants’ act constitutes an assault in the crime of obstruction of performance of official duties and rendered a not-guilty verdict on the charges of this case. In so doing, the lower court erred by misapprehending the legal doctrine on assault in the crime of obstruction of performance of official duties, thereby adversely affecting

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de

Jeju High Court Justice Kim Chang-suk

Justices Park Sang-ok.