(영문) 제주지방법원 2018.8.9.선고 2014노716 판결

For the following reasons, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

① In relation to the violation of the River Act and the violation of the Road Act, if the Defendant installed a tent, etc., it constitutes a justifiable act to monitor environmental pollution and constitutes a justifiable act. ② The prosecutor’s filing of a public prosecution against the Defendant without instituting a public prosecution against the executor of the DNA construction project who violated the River Act and the Road Act constitutes an abuse of the public prosecution right as an obvious discriminatory prosecution

② With regard to special obstruction of performance of official duties, based on the disposition of illegal accusation, which was conducted without setting a considerable period of time, without setting a duty to act, which is a substitute duty, on the basis of the administrative disposition imposing a duty to act, and without setting a reasonable period of time, the administrative vicarious execution of this case does not meet the requirements for vicarious execution, “when it is deemed that neglecting the duty to act as a substitute duty is seriously detrimental to the public interest,” the application for permission to use a river store in E is excluded from and abused from discretion, and does not constitute legitimate execution of official duties, and the Defendant did not assault or threaten a public official who performs his duties by acting in collusion with other persons

2) Unreasonable sentencing

The punishment sentenced by the court below (one year of imprisonment, two years of suspended execution) is too unreasonable.

(b) Prosecutors;

1) Although a misunderstanding of facts or misunderstanding of legal principles (not guilty portion of the judgment of the lower court) an investigation report (an analysis of documentary evidence from January 2, 2013) and a closure of documentary evidence is admissible as evidence derived from a copy of a copy of the original video file recording the situation at the time of the Defendant’s crime interfering with each of the instant business, the lower court erred by misapprehending the legal doctrine or by misapprehending the legal doctrine, which affected the conclusion of the judgment.

2) The guilty portion of the lower judgment of unreasonable sentencing (guilty portion)

The punishment sentenced by the court below (one year of imprisonment, two years of suspended execution) is too unhued and unfair.

2. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

A. The lower court rejected all of the Defendant’s assertion on the following grounds recognized by the evidence duly admitted and examined:

1) The Defendant did not meet the requirement for a justifiable act because it was necessary to install a tent, etc. urgently to monitor environmental pollution, or there was no other method to achieve such purpose.

2) The mere fact that the executor of the DD Corporation did not prosecute the executor does not constitute abuse of the power of prosecution.

3) From November, 13, 2012, a month before the commencement of the instant administrative vicarious execution, the viewing ordered voluntary removal of a tent, etc. by setting the time limit for removal along with the instant order from several times. In light of the fact that the river site in which a tent, etc. was installed has been used as a part of a road, the instant administrative vicarious execution was based on an administrative disposition imposing the duty of removal of a tent, etc. of a substitute act by setting a reasonable deadline for payment, and a legitimate guidance and disposition notifying the purport that if a voluntary removal is not performed within the said deadline, it would be deemed that the failure to perform the duty of removal, such as a tent, etc. is extremely detrimental to the public interest, and that the failure to comply with the application for permission to occupy and use the E for the installation of a tent, etc., and thus, it cannot be deemed a disposition that deviates from and abused the discretionary authority.

4) In light of the number of persons, including the defendant, at the time of the instant vicarious administrative execution, who had been at the scene to block it, and their specific actions, etc., the defendant may be recognized as having committed violence or intimidation against a public official who performs duties by multiple force in collusion with other persons at the time of the instant vicarious administrative execution.

B. In light of the records of this case, the above judgment of the court below is just, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged by the defendant, and this part of the other defendant's assertion is

3. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principle

The evidence submitted by the prosecutor alone is insufficient to recognize that the investigation report (the analysis of documentary evidence from January 2, 2013) and the closure photographs of each documentary evidence are derived from a copy reproduced as it is without any artificial modification, such as editing from the original video files that recorded on the field conditions at the time of the crime of interference with each of the instant duties by the defendant, and there is no other evidence to acknowledge this otherwise. Therefore, the other prosecutor’s assertion on this part is without merit.

4. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

Comprehensively taking account of the various circumstances that form the conditions for sentencing as indicated in the instant case, the Defendant and the Prosecutor’s allegation in this part are without merit, as it is deemed that the sentence imposed by the lower court is too heavy or unreasonable.

5. Conclusion

Pursuant to Article 364 (4) of the Criminal Procedure Act, all appeals filed by the defendant and prosecutor are dismissed.