Defendant

Defendant and Prosecutor

Duties Management

Attorney Sick-kick (National Assembly)

Suwon District Court Decision 2008Gohap68 decided May 23, 2008

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

(a) A prosecutor;

According to the precedents on this case, the relationship between the intentional crimes with the result of the non-petitional double crime is recognized. While the two crimes are more severe than one punishment, and even if the statutory punishment for both crimes is the same, it is not possible to recognize the commercial concurrence. However, the defendant did not recognize the relationship between the crime of special obstruction of performance of duties and the crime of violation of the Punishment of Violences, etc. Act (collective. deadly weapons, etc.) among the charges of this case against the defendant, the court below acquitted the defendant for the crime of violation of the Punishment of Violence, etc. Act (collective. deadly weapons, etc.) on the grounds of the misapprehension of the legal principle.

B. Defendant

In light of the fact that the victim of this case received the money deposited by the defendant, and the defendant was unable to perform the present operation and living difficult, the punishment of imprisonment with prison labor for two years sentenced by the court below is too unreasonable.

2. Determination on the grounds for appeal

A. Judgment on the misapprehension of the legal principle by the prosecutor

(1) Summary of the facts charged

Of the facts charged in the instant case against the Defendant, the summary of the facts charged as to the crime of special obstruction of performance of official duties and the crime of violation of the Punishment of Violences, etc. Act (a group, deadly weapons, etc.) is that the Defendant was subject to drinking control from the Nonindicted Party, who is a police officer belonging to the Goyang Police Station, while driving a car around March 24, 2008. In order to avoid this, the Nonindicted Party, who escaped while driving the car, was forced to drive the car at the patrol car at around 21:50 on the same day, demanded the Defendant to get off the car at the patrol car at around 21:50 on the same day, and the Nonindicted Party refused to stop driving the car, which is a dangerous object, while driving the car in the direction of the Nonindicted Party and obstructing the Nonindicted Party’s performance of official duties, and at the same time, suffered from the injury requiring medical treatment for about six weeks.

(2) Determination

The crime of bodily injury resulting from the obstruction of performance of official duties is an infinite crime including unforeseeable and intentional crime despite the possibility of predictability of the serious result, and even if there is a provision to punish the intentional crime more severe result, it shall not be punished for the intentional crime. The result of the crime shall be aggravated even if the offender could not have predicted the severe result, and if the result of the crime is not predicted, the punishment for the intentional crime shall not be punished for the intentional crime. If the result of the crime can not be punished for the intentional crime, even if the result of the crime would result in the negative result, the remaining punishment for the intentional crime would result in the severe severe result, and therefore, the punishment for the severe result would be imposed for the more less than the punishment for the intentional crime (the punishment for the severe result would be imposed for the 2nd crime). If the result of the crime is more severe as a result of the crime, it shall be punished for the punishment for the 19th crime, which would be more severe through the judgment of the Supreme Court, it shall be punished for the 2nd crime (the 2nd crime).

However, the ordinary concurrence refers to a case where a single act actually satisfies several elements of a special law. Legal concurrence refers to a case where a single act appears to meet several elements of a special law, but actually constitutes only one crime. As such, whether a single crime or several crimes are actually established shall be determined after considering the evaluation of the elements of a special act and the legal interests and interests protected. In addition, the special relation, which is the form of a legal concurrence agreement, is established, other elements than all other elements of a special law, and the act which satisfies the elements of a special law does not meet the requirements of a special law, on the contrary, the act which satisfies the requirements of a special law does not meet the requirements of a special law (see Supreme Court Decisions 2006Do1713, May 26, 2006; 2002Do6033, April 8, 2003, etc.).

In this case, the relation between the crime of violation of the Punishment of Violences, etc. Act (a crime of bodily injury by carrying a deadly weapon or other dangerous object) and the crime of bodily injury by special obstruction of performance of official duties refers to health stand, the former refers to "in the case of committing the crime of bodily injury by carrying a deadly weapon or other dangerous object," and the latter refers to "in the case of causing the injury or bodily injury by assault or intimidation of a public official performing his duties by carrying a dangerous object," and the latter element of the crime requires that the victim be a public official in the course of performing his duties except all elements of the former element. Thus, in addition, in the case of the latter element of the crime of special obstruction of official duties, the latter element of the crime is a crime that satisfies the requirement of special composition of the former, and in the case of the crime of special obstruction of official duties, the benefit and protection of the legal interest of the crime of special obstruction of official duties as well as the personal safety of the public official is also included in the protected interest of the law

Furthermore, the former Punishment of Violences, etc. Act (amended by Act No. 7891 of Mar. 24, 2006) shall be punished by imprisonment for a limited term of three or more years, and if the crime is committed at night, by imprisonment for a limited term of five or more years, and if the crime is committed at night, it is different from the statutory punishment for the crime of special obstruction of performance of duties (two or more years), it is desirable to regard the two crimes as crimes of ordinary concurrence in terms of equity in punishment. However, under the current legal system where the revision of the Punishment of Violences, etc. Act provides that the act of inflicting bodily injury by carrying a dangerous weapon at night or at night is committed at night, and there is no difference in the crime of special obstruction of performance of duties. Thus, the court below's determination that the crime of violation of the Punishment of Violence, etc. Act (the crime of causing bodily injury to a public official carrying a dangerous object as in this case) is not established separately from the crime of special injury to a person causing obstruction of performance of duties, and therefore, it is reasonable to deem the court below's error in its reasoning.

B. Determination on the Defendant’s assertion of unreasonable sentencing

Although the defendant led to the confession of the crime of this case and violated it, and the victim also deposited two million won in the victim's future. The defendant was sentenced several times, and the defendant was sentenced five times or more due to driving without permission or driving without permission after 2004, despite the fact that he had been sentenced five times or more due to driving without permission or driving without permission, the police officer who was driving with the defendant without a license has escaped without any justifiable reason, and accordingly, even though the police officer who was driving with the defendant again requested the defendant to get out of the patrol, the police officer's driving of the motor vehicle and caused the injury requiring six weeks medical treatment, and the crime or liability of the crime was significant, and thus, the defendant's situation, means and result of the crime of this case, circumstances after the crime, age, character and behavior of the defendant, and environment, etc., which led to the crime of this case, were considered in light of various circumstances of the defendant's assertion, and thus, the above defendant's assertion is not justified.

3. Conclusion

Therefore, the appeal of this case by the defendant and the prosecutor is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Park Hong-woo (Presiding Judge)