209No3829 Of course, abandonment of duties, abuse of authority and obstruction of exercise of rights, assault, insult

○○ Kim (78 years old, male), and non-permanent,

Seo-gu, Seo-gu, Gyeongcheon-gu

5 5 5 5 14

Defendant

○ Kim

Attorney Park Il-young

Suwon District Court Decision 2008Ma5079 Decided July 27, 2009

December 24, 2009

The guilty portion of the judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for not less than six months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

1. Summary of the grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

(1) As to the abuse of official authority on October 1, 2007 among the facts charged in the instant case

On October 1, 2007: at least 20 : 20, the Defendant discovered that Gowons did not follow the Defendant’s instruction that he would not take any bits and divings of subordinate members. At around 23:40 on the same day, the Defendant reported that Gowons were locked because he did not go against the Defendant’s instructions. At around 3:0 on the same day, the Defendant’s act constitutes an act of 0:30 on October 2, 2007, which was found to be unlawful as it did not comply with the Defendant’s instructions. The Defendant’s act constitutes an act of 1:30 on October 2, 2007, which was found to be unlawful as it did not constitute an act of 1:30 on the part of Gowons.

(2) As to the abuse of official authority on October 3, 2007 among the facts charged in the instant case

On October 3, 2007, at around 10: 00, the Defendant: (a) discovered that a part of the high class members of the high class members either locked or play a game even after the weather time has passed; (b) on the same day, the lower class members pointed out the same matters; (c) from around 10:50 on the same day, the Defendant instructed the members to look at the water counter and to sit at the water counter; (d) but (e) from around 10:50 on the same day, the Defendant did not completely impose any sanctions on personal services such as meals or toilets; and (e) from around 11:40 on the same day, the Defendant did not look at the water counter from the point of view of the second class members of the second class members; and (e) the Defendant’s act constitutes an unlawful act of misunderstanding the facts under Article 20 of the Criminal Act so that it can be viewed as a legitimate act of misunderstanding the facts.

(3) As to the abandonment of duties among the facts charged in the instant case

The defendant, even though he was on duty, went away from the military unit after drinking, and returned to the military unit again after drinking more than two hours of drinking and drinking in the vicinity of the military unit. This is not a worker on duty, that is, a worker on duty who completely puts off his duties, but a worker on duty does not have been able to perform his duties in good faith due to neglect or performing his duties in a formal manner. Thus, even though he did not fall under the "Abandonment of duties" under Article 122 of the Criminal Act, it is erroneous in the misapprehension of legal principles that the court below found him guilty of this part of the facts charged.

B. Unreasonable sentencing

The sentencing of the court below is too unreasonable because the sentencing of the court below is too large.

2. Determination

A. Ex officio determination

B. Prior to the judgment on the grounds for appeal by the defendant, the prosecutor examined ex officio the above grounds for appeal by the court of first instance, and the defendant 3-B of the facts charged of this case (Article 1-2 of the facts charged of this case No. 1-2 of the facts charged of this case c) : around 00 on September 1, 2007, the defendant collected all the members on the ground that the members do not remain several in the internal affairs team at around 08:0 on September 2, 2007, and 13:0 on around 13:0, after he collected all the members on the ground that the members do not remain in the internal affairs team of the above crime patrol team, he did not move away with him except for meal hours until around 0:0, and caused approximately 30 members, such as A, etc. to go together without duty, and applied for changes in the indictment to this effect, which led to the court's change of this case's crime and each of the above crimes in the former part of Article 7 of the Criminal Act.

Although the above ground for ex officio reversal exists, the main text of the mistake of facts or misapprehension of legal principles is still subject to the judgment of the court. Therefore, we will look at this issue.

B. Determination as to the abuse of official authority on October 1, 2007 among the facts charged in the instant case

(1) Relevant provisions

○ Establishment of Reference Police Units Act

Article 2-3 (Appointment and Conversion Service of Graduates of Police Police University from among Police Officers who were Appointed and Assigned) (2) Members of the riot police units whose duties are to assist in the security of the police branch shall be appointed from among those who have been converted under Article 25 (1) of the Military Service Act.

○ Management Regulations, such as riot police officers

Article 4 (Definition of Terms) The definitions of terms used in these Rules shall be as follows:

8. the term “auxiliary police officers” means the riot police officers appointed pursuant to Article 2-3 (2) of the Act;

of this section.

9. the term “ combat police officers” means combat police officers appointed pursuant to Article 2-3 (1) and (2) of the Act;

Police Officers (hereinafter referred to as "police Officers") means Police Officers.

(1) The commander of each level of command shall faithfully perform his/her duties falling under each of the following subparagraphs to eradicate sacity and cruel acts between the former and the latter in order to eradicate such saves:

1. Change of awareness of police officers and police officers with regard to sacity and cruel acts, and change of awareness of ebbrout;

2. Removal of factors inducing the sacity of the base of living in the former one and cruel acts;

3. Improvement of unreasonable internal-free living systems, regulations and policies;

4. Improvement of unsound living environment in the old and old.

5. Education for eradicating sacity and cruel acts;

6. Production and utilization of audio-visual teaching materials to boost and maintain interest in eradicating sacity and cruel acts;

7. Heavy reprimands against those involved in sacity and cruel acts;

8. Securing, etc. a passage for receiving reports on difficulties, grievances, and damage caused by the members.

(2) Matters falling under each of the following subparagraphs shall be prohibited between police officers:

1. Private materials, such as sacrine and cruel acts;

2. Speech, violence, and bullying;

3. Sexual harassment, sexual assault, etc.;

4. Offering money and valuables, gambling, and gambling and entertainment;

Rules for the operation of the Gyeonggi-do Police Agency Security Guards

Article 2 (Definition of Terms) The definitions used in these Rules shall be as follows:

1. The term "crime prevention patrol unit" means a riot police officer, who is established in the urban police station, and conducts the crime prevention patrol;

person mentioned in the preceding subparagraph means the person mentioned in the preceding subparagraph.

2. The term "period personnel" means a police officer of Grade コ or higher who is in the patrol team;

Article 11 (Designation of Services)

1. Working hours;

(a) shall, in principle, work eight hours a day;

(b) for more than two consecutive hours of work designation, rest shall be given in the middle by 20 minutes;

(2) Legal principles

In order to recognize a legitimate act, the following requirements should be met: (a) legitimacy of the motive or purpose of the act; (b) reasonableness of the means or method of the act; (c) balance between the protected interest and the infringed interest; (d) supplementary nature that has no means or method other than the act; (e) 6). Cruel act refers to a case where a person who abused his authority and causes an difficult mental or physical pain. In this case, the issue of whether an act constitutes a harsh act should be examined and determined by examining specific circumstances, such as the nature of the actor and the victim; (d) the purpose of the act; (e) the balance between the protected interest and the infringed interest; and (e) the fourth urgency; and (v) the supplementary nature that there is no other means or method than the act (see Supreme Court Decision 2003Do300, Sept. 26, 2003; 2008Do2222, May 29, 2008).

(3) Determination

Based on the above relevant provisions and legal principles, the following circumstances: (a) the Defendant was investigated by the hearing inspection room on November 16, 2007 after the date of the instant case; and (b) the Defendant asked the members of the two sub-committees at the time; (c) he was aware of the mind that he did not know of the mind that he was fluencing the members; (d) after showing what it was difficult from the following, the Defendant flucing the whole members of the sub-committee and flucing them to weather and write down the reasons; and (d) the Defendant stated to the effect that he stated to the effect that he was flucencing, etc. while under the influence of alcohol at the time of the instant case; and (e) carried out ice flucing, etc. in a significant manner.

In light of the fact that at the time of the instant case, the status of the Defendant, the relationship between the Defendant and the two sub-members, and the Defendant’s speech and behavior before and after the instant case, the Defendant, at around 22:30 on October 1, 2007, entered the three sub-members of the instant crime prevention patrol team and the three sub-members of the instant crime prevention team on the ground that he refused to talk while drinking the Defendant, and the members of the sub-committee were able to fluore the five sub-members, such as D, which caused the fluence to prepare a statement of reasons, but it cannot be seen that there was no error of law by misapprehending the legal principles as to the Defendant’s act by abusing the above sub-committee or by abusing the legal principles as alleged in the lower court’s reasoning.

C. Determination as to the assertion on the abandonment of duties among the facts charged in the instant case

(1) Relevant provisions

○ Management Rules, such as riot police officers

Article 211 (Work on Watchkeeping) (2) A watchkeeping officer shall direct and supervise the personnel in the situation room, workers on duty, and all workers, and perform the following duties:

1. Working as an agent for a commander during a period other than daily hours;

2. Establishment of lectures and supervision of various kinds of work;

3. Identification of personnel and equipment, and setting up of preparedness for mobilization;

4. Expenses for the prevention of fire theft and internal security;

5. Environmental adjustment and other tasks directed by a commander;

(2) Determination

According to the reasoning of the court below and evidence duly adopted and examined: ① the defendant was found to have been on October 19, 207, and 21: from 30 to 23:0 on the same day after the police event, and seven police officers belonging to the waiting room for the crime prevention; ② the defendant was found to have been on the same day and 4 to 5 members of the police station, and the defendant was not on the same day on the 20th day after he was found to have been on the 20th day after he was on the 9th day after he was on the 1st day after he was on the 1st day after he was on the 1st day after he was on the 1st day after he was on the 2nd day after he was on the 1st day after he was on the 1st day after he was on the 1st day after he was on the 1st day after he was on the 2nd day after he was on the 1st day after he was on the 1st day after he was on the 2nd day after he was on the 1st day.

3. Conclusion

If so, pursuant to Article 364(2) and (6) of the Criminal Procedure Act, the guilty portion of the judgment below shall be reversed as the direct right, and the remaining grounds for appeal shall be reversed without examining the defendant's remaining grounds for appeal, and it shall be decided again as follows.

Criminal facts and summary of evidence

The criminal facts of the defendant recognized by this court and the summary of the evidence are as follows: 08 on September 9, 2007: 00 on the first half : 08 on the first half 207, the defendant collected all the members on the ground that the members did not remain several in the internal affairs team of the above crime prevention patrol team; 13:00 on the second 2nd 0th 2nd 1st 2nd 2nd 2nd 2nd 2nd 2nd 30th 2nd 2nd 30th 2nd 2nd 30th 2nd 2nd 30th 2nd 2nd 30th 2nd 2nd 30th 2nd 2nd 30th 2nd 2nd 30th 2nd 2nd 30th 2nd 2nd 2nd 2nd 3th 2nd 3th 2nd 2nd 3th 2nd 2nd 3th 2nd 3th 3th 2nd 3th 2nd 2nd 3th 3th 2nd 2nd 2nd 2nd.

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Article 122 (Crime of Abandonment of Duties, Selection of Imprisonment) of the Criminal Act, each Criminal Act Article 123 (Crime of Abuse of Authority and Selection of Imprisonment)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution;

Article 62 (1) of the Criminal Act (Consideration, etc.)

Judgment on the Defendant and defense counsel's argument

The defendant and his defense counsel stated that the defendant's two members of the court below should look at the water unit before the point of view. However, the time is not long, and this constitutes a justifiable act as stipulated in Article 20 of the Criminal Act. Thus, according to the evidence duly adopted and examined by the court below and the court below, the defendant's act was conducted at the second patrol team around 00:0, on the ground that the members of the court below did not remain in the military unit of the second patrol team of this case, it cannot be seen that the defendant's act was conducted without excluding the time of meals until 13:00, and the defendant's act was conducted at the second patrol team of this case without referring to other acts of the court below and the second patrol team of this case.

Grounds for sentencing

Although the Defendant appears to have committed each of the crimes in this case, even though he was a first offender and part of his mistake in the trial, the Defendant committed each of the crimes in this case by neglecting his duty as a watchkeeping officer or by abusing his official authority without justifiable grounds and allowing the sub-party to perform an act without any duty. In light of the circumstances and methods of such crimes, it is not good that the crime is committed, and it is inevitable to punish the Defendant on the ground that such an act may cause damage to the general public in the future, and it is inevitable to punish the Defendant on the ground that such an act may cause damage to the general public in the future, taking into account the circumstances and unfavorable circumstances of the Defendant’s age, character and behavior, occupation, occupation, and circumstances after the crime, etc.

Judge Lee Dong-chul

Judges Lee Bo-ok

Judges Kim Jong-hoon