[1] Whether the violation of prohibited acts ordered by law and the crime of obstruction of performance of official duties by fraudulent means is established (negative)

[2] The case holding that an act of a correctional officer and a prisoner in collusion with each other of them smoking tobacco by a correctional officer, and an act of communicating outside and with the outside by a mobile phone does not constitute an obstruction of performance of official duties by fraudulent means

[1] Where a statute orders the prohibition of a certain act and imposes a penal provision on an act of violating the prohibition, and where a public official supervises and controls a violation of the prohibition provision, the public official has the authority and duty to monitor and control the violation of the prohibition provision. Thus, if the public official simply conducts an act of violating the prohibition provision by avoiding a public official's surveillance and control, it shall not be deemed that the act constitutes the crime of obstruction of performance of official duties by fraudulent means, aside from applying the penal provision to the public official's surveillance and control.

[2] The case holding that since the law imposes a duty not to commit a violation of discipline by smoking on a prisoner, possessing, giving, receiving, or exchanging tobacco, or communicating with another person by telephone, etc., and a correctional officer has a general official authority and duty to monitor, regulate, and detect the violation of discipline by a prisoner and report it to his superior to the disciplinary measure, and if a correctional officer performing surveillance and control duties is unable to perform his duties by using a deceptive scheme, the crime of obstruction of performance of official duties by fraudulent means is established against the prisoner's act of violating the prohibition provisions. However, the act of a prisoner's act of avoiding surveillance and control by a correctional officer does not constitute a crime of obstruction of official duties by fraudulent means, and even if a person other than a prisoner brings the prohibited goods into the prison by avoiding a correctional officer's inspection or surveillance, it cannot be deemed that the act of obstruction of official duties by fraudulent means constitutes a crime of obstruction of official duties by a correctional officer, even if he does not have any authority and duty to collect the prohibited goods by inspecting the inmate's ward or body, etc.

[1] Article 137 of the Criminal Act / [2] Article 137 of the Criminal Act; Articles 7, 45 (1) of the former Criminal Administration Act (amended by Act No. 6038 of Dec. 28, 199); Articles 46 (1) of the former Criminal Administration Act (amended by Act No. 6038 of Dec. 28, 199); Articles 3 subparag. 5, 21, and 7 (1) 1 of the Rules on Punishment of Prisoners; Articles 36 (1), 44, 47 (1) and (3), and 54 (1) of the former Rules on the Duties of Correctional Officers (amended by Ordinance of the Ministry of Justice No. 498 of Oct. 14, 200); Articles 36 (1), 47 (1) and (3), and 54 (1) of the former Rules on the Punishment of Prisoners’ Duties

Defendant 1 and three others

Prosecutor

Law Firm Future, Attorneys Park Jong-soo et al.

Seoul District Court Decision 2001No5045 Delivered on December 5, 2001

The appeal is dismissed.

We examine the grounds of appeal.

1. Where the Act and subordinate statutes prohibit and punish a violation of the prohibition regulations while imposing a penal provision on a public official to monitor and regulate the violation of the prohibition regulations, the public official's authority and duty to monitor and control the violation of the prohibition regulations. Thus, if the public official simply conducted an act of violating the prohibition regulations by avoiding the public official's surveillance and control, it shall not be deemed that the act constitutes obstruction of performance of official duties by deceptive means, regardless of the application of the penal provision to the public official.

Article 45 of the former Criminal Administration Act (amended by Act No. 6038 of Dec. 28, 199; hereinafter the same shall apply) provides that prisoners shall comply with the discipline prescribed by the Minister of Justice. Article 46 (1) of the same Act provides that prisoners shall be punished if they violate the discipline, and Article 3 of the same Act provides that prisoners shall not drink or smoke in subparagraph 5, possess, receive, exchange, or conceal alcohol or tobacco; Article 7 (1) 1 of the same Rule provides that prisoners shall not contact other prisoners by telephone or other means without permission; Article 7 (1) 4 of the same Rule provides that prisoners’ entry and exit shall be reported to the heads of correctional institutions, etc. or their agents on behalf of the prisoners; Article 46 (1) of the same Act provides that prisoners shall carry the prisoners' clothes after collecting any violation of discipline; Article 7 (1) of the former Criminal Administration Act provides that prisoners' entry and exit of prisoners shall be carried out without delay; Article 46 (1) of the same Regulation provides that prisoners shall carry the prisoners' clothes without delay;

In full view of the above provisions of the law, a prisoner is obligated not to smoke, possess, receive, or exchange tobacco, or to commit a violation of discipline with another person by telephone or other means without permission. A correctional officer has a general official authority and duty to monitor, regulate, and detect the violation of discipline and to report it to his superior and submit it to his/her superior for disciplinary action. If a correctional officer performing surveillance and control duties in a specific and practical manner prevents his/her execution of duties by using a deceptive scheme, the crime of obstruction of performance of official duties by deceptive means is established. However, even if a prisoner does not merely violate the prohibition provision by avoiding the correctional officer's surveillance and control, it does not constitute a crime of obstruction of official duties by fraudulent means. Even if a person who is not a prisoner brings the prohibited goods into the correctional institution by avoiding the inspection or surveillance by a correctional officer, it cannot be said that a correctional officer's act constitutes a crime of obstruction of official duties by fraudulent means, unless he/she has authority and duty to collect the prohibited goods by checking the prisoners' living room or body, etc., and it does not constitute a violation by deceptive scheme.

2. In this case, the court below affirmed the judgment of the court of first instance that acquitted Defendant 2, a prisoner of the Seoul detention center, in collusion with Defendant 1, Nonindicted 1, or Nonindicted 2, who was a correctional officer, smoked from the receipt of tobacco from them, or let Defendant 3 and Defendant 4, the same prisoner smoked from the phone, or interfered with the performance of official duties of the correctional officer or the head of the Seoul detention center by means of a telephone communications with the outside and outside of the cell phone from Nonindicted 1, is just in accordance with the above legal principles, and there is no violation of law such as misapprehension of legal principles as asserted in the grounds for appeal.

The Supreme Court Decision 2000Do3874 Decided October 27, 2000 cited in the ground of appeal by the prosecutor is merely that the original judgment does not contain any error of law in mistake of facts or incomplete deliberation, or that there is no error of law in punishment in the second part. Thus, it does not conflict with the above judgment of the court.

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

Justices Cho Cho-Un (Presiding Justice)