[1] The purport of Article 7(3) of the Punishment of Minor Offenses Act stipulating that "where a person who received a notice of penalty payment has paid the penalty, he/she shall not be punished again for the same offense."

[2] The scope recognized as having the same effect as a final and conclusive judgment on the payment of penalty by notification under the Punishment of Minor Offenses Act

[3] The case holding that in a case where the defendant received a disposition of notification as an offense of "marbial disturbance" under the Punishment of Minor Offenses Act and paid a penalty, and the prosecution was instituted on the grounds that he interfered with the performance of official duties by assaulting police officers at a close time and place, the act of "marbial disturbance" and the charges of obstruction of performance of official duties" are separate acts whose identity is not recognized, and thus

[1] Article 7(3) of the Punishment of Minor Offenses Act (wholly amended by Act No. 11401, Mar. 21, 2012) / [2] Article 13(1) of the Constitution of the Republic of Korea; Article 7(3) of the Punishment of Minor Offenses Act (wholly amended by Act No. 11401, Mar. 21, 2012); Articles 298(1) and 326 subparag. 1 of the Criminal Procedure Act / [3] Article 136(1) of the Criminal Act; Articles 1 subparag. 25 and 7(3) of the Punishment of Minor Offenses Act (wholly amended by Act No. 11401, Mar. 21, 2012); Article 298(1) of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2001Do849 Decided November 22, 2002 (Gong2003Sang, 267) / [1] Supreme Court Decision 2002Do2642 Decided July 11, 2003 (Gong2003Ha, 1747) Supreme Court Decision 2010Do11987 Decided January 27, 201 / [2] Supreme Court Decision 2009Do1249 Decided April 28, 201 (Gong201Sang, 1089)

Defendant

Defendant

Attorney Hy Jae-sik

Supreme Court Decision 2010Do11987 Decided January 27, 2011

Seoul Central District Court Decision 2011No404 decided May 20, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the identity of the facts charged

A. Article 7(3) of the Punishment of Minor Offenses Act provides that if a person who received a penalty payment notice pays the penalty, he/she shall not be punished again for the same offense. This interpretation is to recognize the validity equivalent to that of a final and conclusive judgment on the payment of penalty (see Supreme Court Decision 2002Do2642, Jul. 11, 2003).

However, deeming that res judicata of the original final and conclusive judgment would be excessive to the criminal facts recognized as identical to the criminal facts in the final and conclusive judgment, is based on the fact that the criminal facts recognized as identical to the criminal facts charged are subject to a trial by the court through changes in indictment at any time, and that there is a risk of being convicted of being convicted of the criminal facts recognized as identical to the criminal facts charged. However, in a case where an offender pays the penalty upon receipt of notification of the penalty due to an offense, the court’s trial proceedings have not commenced, and there is no ground to regard the scope of the offense for which punishment

In addition, considering the fact that in a case where a penalty is notified of a penalty due to an offense under Article 7(3) of the Punishment of Minor Offenses Act and the penalty is paid, the object of double punishment is clearly defined not to be punished again, and the object of double punishment is limited to the offense in question. In a case where an offender is notified of a penalty by the chief of a police station on the ground that he/she committed an offense, and pays the penalty within the payment period, the effect corresponding to the final judgment on the payment of the penalty is recognized, the fact that the penalty is not punished again shall be interpreted as limited to the offense itself as stated in the reason for notification of the penalty and the offense that is recognized as identical to the offense in question during the time of notification disposition.

B. According to the records, the Defendant: (a) from around 21:00 on October 10, 200 to around 21:30 on the 21:0, while drinking alcohol from 00 to around 21:30, she frighting a frightt with the customers in front of the seat, such as frighting to fright and passing through sound; (b) Nonindicted 1, etc. at the time, upon receiving the report from Nonindicted 2, who was the head of the 00 fright and called the Defendant as an flagrant offender, and arrested the Defendant as a police officer and frighting to go through the fright zone; (c) the Defendant continued in the fright zone and frighting the disturbance; (d) the amount of money to the Defendant: the alcohol station; (e) the date and time of the offense; and (e) the place of the offense: (e) the Defendant’s act of assaulting Nonindicted 2, 2009, which was issued with Nonindicted 3’s imprisonment fright.

According to the above facts, the offense for which the defendant was subject to a disposition of notice of penalty is an act of disturbance of drinking alcohol in the ○○○ and the governing area from October 21, 2009, and the facts of the crime of obstruction of performance of official duties of this case against the defendant are acts of obstruction of performance of official duties after the above disposition. In light of the above legal principles, the facts of the offense of disturbance of drinking alcohol and the crime of this case, which was prosecuted, are close to time and place, but not recognized as identical. Thus, even if the defendant paid the penalty after receiving a disposition of notice from the chief of the police station on the ground of disturbance of drinking alcohol, it cannot affect the punishment of the defendant for the crime of obstruction of official duties, and thus, it cannot be deemed double punishment.

The court below erred in deeming the instant offense to be limited to “act of disturbance in drinking within ○○○ Hospital”. However, the decision of the court below that found the Defendant’s payment of penalty did not reach the facts charged in the instant case and found the Defendant guilty of the instant charges is justifiable. Therefore, the above error of the court below did not affect the conclusion of the judgment.

2. As to the legality of performing official duties

After recognizing the circumstances as indicated in its reasoning based on the adopted evidence, the lower court determined that the execution of official duties by the police officers Nonindicted 4, 5, and 3 cannot be deemed unlawful. In light of the relevant legal principles and records, the lower court’s above determination is just and acceptable, and there is no error of law such as misunderstanding of legal principles as to the legality of official duties as alleged.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)