(영문) 서울중앙지방법원 2014.4.10. 선고 2013고합1312 판결

On August 14, 2013, around 15:10 on August 15:10, 2013, the Defendant was stopping the Gpoter vehicle owned by the Defendant in an unlawful manner in order to deliver the flowers bus ordered by Fnoon E branch from the three-lanes of the E Company located in Seocho-gu Seoul Seocho-gu Seoul Metropolitan Government. At the time of traffic control, the Defendant was issued a penalty notification from the victim (38 years of age) belonging to the H police station.

In order to issue a penalty notice, the Defendant driving the above cargo vehicle as if the victim moved the victim to a four-lane lower line, which is a subordinate line, with the intention of moving the victim to a four-lane, and had the victim run away from one’s own speed. The victim took the window on the side of the open seat as hand and sound “stop, stop, stop”, but the Defendant neglected this, and caused the victim to have the above window cut away from the window on the side of the driver’s seat.

Then, the Defendant continued to change the iron bars from three lanes to one lane even though the victim was able to drive the freight cars, and the Defendant continued to drive the said bus in the direction of the first lane, and caused the victim to be 10 meters a monthly amount of 10 meters and exceeds the floor, thereby causing the victim to suffer a multi-closion, which requires approximately two weeks of medical treatment.

Accordingly, the defendant driving a dangerous cargo vehicle, thereby obstructing the legitimate performance of duties concerning traffic management of the victim, who is a police officer, and causing injury to the victim.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of I and J;

1. Examination protocol of the accused by prosecution;

1. On-site photographs, diagnostic reports, the place and circumstances of crimes;

1. Investigation reports (related to photographs of damage) and investigation reports (CCTV accompanying images);

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)

Judgment on the argument of the defendant and defense counsel

1. Determination on the credibility of the victim's statement

A. The defendant and his defense counsel asserted that the victim's statement was not consistent in the first police investigation, based on the following: (a) the victim stated that he did not put a nearby driver's seat in the second police investigation; (b) the victim's statement was stated to put a nearby driver's seat at the time of the second police investigation; and (c) the victim's statement was not reliable as a whole on the basis of the fact that he did not make a consistent statement as to what point it was based on the time when she put a iron straw back on the left side after the cargo partitioning.

B. According to the records, the victim has consistently stated to the effect that "the victim escaped at the scene of the police investigation to avoid a disposition of notice," and that "the victim attempted to stop the defendant's escape from the cargo vehicle immediately adjacent to the defendant's driver's vehicle, but the victim escaped rapidly," and that "the victim was demanded to stop the defendant at the second police investigation and the prosecutor's investigation, but the defendant escaped at the scene, disregarded the victim's statement, and escaped from the scene." In addition, the victim's statement was made to the effect that "the victim was in compliance with the victim's statement," and the CCTV video (as of Articles 12 and 13 of the investigation record) attached to the on-site photograph (as of the investigation record) and the investigation report conforms to the above contents of the victim's statement, it is judged that the victim's statement can be sufficiently reliable.

C. According to the records, the victim made a statement that he was able to attach the freight to the driver's vehicle in the process of ordering the defendant to move to a subordinate line only from the time when the second police investigation was conducted. The victim's statement at the time of the second police investigation is merely merely the part which was not clearly discovered at the time of the first police investigation, and the victim's statement at the time of the first police investigation was not attached to the cargo vehicle in the course of ordering the victim to move to a subordinate line." Thus, the victim's statement at the time of the second police investigation cannot be deemed to have reversed the victim's statement at the time of the second police investigation to move to a subordinate line. Rather, the victim clearly stated that the driver's cargo was attached to the defendant's driver's vehicle in the process of ordering the defendant to move to a subordinate line. The victim's statement at the time of the second police investigation at the time of the second police investigation at the time of the second police investigation at the time of the second police investigation at the time of the investigation at the time of the victim's statement at the second time cannot be deemed inconsistent with the victim's statement.

C. Considering whether the victim's statement at the time of leaving the vehicle of the defendant's driving is not consistent and affects the credibility of the whole statement, the victim's consistent purport of the victim's statement is that the victim attempted to flee at the scene without following the victim's instructions, and the victim took a series of measures to prevent the defendant from escape from the defendant's right side immediately adjacent to the defendant's cargo vehicle, and as long as it is acknowledged that the defendant was aware of such fact at the time of the crime of this case, it does not affect the point of time when the victim left the vehicle at the time when the victim knew of the fact at the time of the crime of this case's driving. In addition, according to the records of this case, the victim's act of the defendant's escape and the victim's attempt to stop from the defendant's escape at the time of the emergency situation where the defendant attempted to escape at the scene, which is the offender, is very complicated between the defendant's act and the victim's act to stop the defendant's escape, so long as the victim's two cargo cars are acknowledged to prevent the defendant's escape.

No doubt shall be visible.

D. If so, the victim's statements are deemed to be consistent as a whole, consistent with the defendant's statements, as well as other evidence, and thus, they can be sufficiently reliable. Thus, the defendant and the defense counsel's arguments disputing this issue

2. Determination as to the criminal intent

A. The defendant and his defense counsel asserted that the defendant did not have the intent to commit the crime since the defendant's act was consistent with the victim's attitude, but the victim did not regard the victim as the cargo driver.

B. In the crime of obstruction of performance of official duties, the contents are to recognize the fact that the other party is a public official performing his duties and that he uses violence or intimidation against the other party. Such recognition may be acknowledged as a so-called willful negligence even if it is uncertain. According to the evidence duly adopted and examined by the court, the defendant stops the cargo vehicle on three-lanes of the four lanes of the road, and the defendant was demanded by the victim who is a police officer to move the vehicle, thus having received a penalty notice. The victim ordered the defendant to move the window on the side of the above truck immediately above the driver's seat to four-lane of the cargo vehicle in order to issue a penalty notice, without considering the victim's instruction, the victim, who was moving the vehicle to a lower-lane line according to the victim's order, and the victim was also aware of the situation that there was no rapid change of the vehicle at the time of the victim's own speed and there was no change of the vehicle at the time of the victim's order to stop the vehicle to two-lane of the vehicle.

C. Furthermore, the crime of obstruction of performance of official duties is established when a public official who conducts his/her duties causes injury to the public official by assaulting and threatening the public official to perform his/her duties, and it is sufficient that the perpetrator could have predicted the occurrence of the injury, and the result does not need to be intended. Whether such predictability exists or not shall be determined by examining specific circumstances, such as the degree of assault or intimidation, response status of the victim, etc. (see, e.g., Supreme Court Decision 2010Do11381, May 24, 2012). According to the aforementioned circumstances, the defendant ordered the transportation of the vehicle immediately next to the freight truck of the defendant to move the vehicle back to the lower line in order to issue a penalty notice, and therefore, it can be sufficiently recognized that the victim escaped from the vehicle, and the victim attempted to stop the escape of the defendant, and therefore, it is sufficient that the victim could have predicted the injury to the defendant, regardless of the defendant's criminal intent, and thus, there is no reason to assert this part of the defendant and his/her defense counsel.

Reasons for sentencing

1. The scope of punishment: Imprisonment with prison labor for not less than one year and not more than six months but not more than fifteen years;

2. Scope of recommendations;

[Determination of Punishment] Injury or injury caused by the obstruction of performance of official duties by special obstruction of official duties

[Special Sentencings] Reductions: Reductions (including serious efforts for recovery of damage)

[Determination of the Recommendation Area] Reduction Area

[Scope of Recommendation] From 1 to 3 years:

3. Determination of sentence: Imprisonment with prison labor for one year and six months, and two years of suspended sentence; and

The crime of this case is that the defendant driving a cargo vehicle with a police officer's discretion in order to avoid the disposition of notice of penalty, and attempted to escape from the speed of the police officer so that the victim, who is a police officer, suffered bodily injury that requires medical treatment for more than two weeks, and the liability for the crime of this case is not minor.

However, as to the obstruction of performance of official duties, the defendant recognized his mistake and reflects in depth as to his basic crime, the result of the injury is also held liable and deposited an amount equivalent to the damage change, the degree of the injury suffered by the victim is relatively not more severe, and the defendant has no specific criminal record, etc. taking into account favorable circumstances, such as the defendant's age, character and behavior, environment, motive and circumstance after the crime, etc., and taking into account all the sentencing factors as shown in the arguments of this case, such as the defendant's age, character and behavior, environment, motive and circumstance

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