[1] Whether an act of a correctional officer ordering a prisoner who attached a photograph or picture beyond the scope permitted by the warden constitutes lawful execution of duty (affirmative in principle)

[2] In a case where it is necessary to investigate a prisoner who has a considerable reason to be suspected of engaging in an act falling under the grounds for disciplinary action, whether the prisoner can be separately confined in a ward for investigation (affirmative with qualification)

[1] Articles 32(1) and 105(1) and (3) of the Administration and Treatment of Correctional Institution Inmates Act, and Article 214 subparag. 17 of the Enforcement Rule of the Administration and Treatment of Correctional Institution Inmates Act, as well as the obligation of cleanliness and the obligation to regulate prisoners. In addition, the act of a prisoner to attach a photograph or picture to a confinement facility beyond the scope permitted by the warden of a correctional institution has the intrinsic nature of damaging the original clean condition of the confinement facility to be maintained by the warden of the correctional institution. The establishment of the permissible standard of attachment to the confinement facility is the matters belonging to the authority of the warden, who is the manager of the confinement facility, and cannot be deemed as violating the principle of excessive prohibition under the Constitution, and the above act of personal or discretionary attachment of the prisoner is likely to hinder the maintenance of cleanliness of the confinement facility itself as well as maintenance of order in community life within the correctional institution, and the act of the prisoner beyond the scope of lawful attachment of the attached object should be deemed as an act of the correctional institution beyond the scope permitted by the warden.

[2] Even in cases where it is necessary to investigate a prisoner who has considerable grounds to suspect that he/she committed an act falling under the grounds for disciplinary action, the separate confinement of the prisoner in the investigation room is recognized only when the prisoner is likely to destroy evidence, or when there is a concern that the prisoner may harm other persons, or when there is a concern that other persons may harm or need to protect the prisoner from danger of other prisoners.

[1] Article 37(2) of the Constitution, Article 136(1) of the Criminal Act, Articles 4, 32(1), and 105(1) and (3) of the Administration and Treatment of Correctional Institution Inmates Act, Article 214 subparag. 17 of the Enforcement Rule of the Administration and Treatment of Correctional Institution Inmates Act / [2] Article 136(1) of the Criminal Act, Article 110(1)1 and 2 of the Administration and Treatment of Correctional Institution Inmates Act

Defendant

Prosecutor

Daejeon District Court Decision 2012No1374 Decided January 10, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. The facts charged in this case

The summary of the facts charged in the instant case is that the Defendant, at around 10:20 on January 5, 201, at the 2nd team office of the Daejeon Prison, which is located in the Daejeon Seodong-gu, Daejeon, the Defendant failed to comply with the correctional officer’s official instructions to remove the Defendant’s act of attaching an artist’s photograph to the wall of the ward on December 201, because it violates the duty of cleanlines. Thus, the Defendant was ordered to move the victim’s school security and patrol team from Nonindicted 1 to the ward for investigation to the ward for investigation. As such, the Defendant argued that he would directly bring his own things, and was sleeped by the victim’s fat, which requested the victim to undergo the autopsy at the ward of the instant prison at around 10:30 on the same day, “The victim’s bit of bit of bit of bit of bit of bit of bit of bit of bit of bit of bit of bit of bit of bit of bit of bit of bit of bit of bit of bit of the victim.”

2. The judgment of the court below

A. In full view of the admitted evidence, the lower court acknowledged the following facts.

(1) In a situation where the Defendant was in a relationship between a correctional officer and a correctional officer as a true and genuine day, the Defendant was instructed by Nonindicted 2 of the prison officer affiliated with the 2st team on the day of the instant case that the female artist’s photograph (hereinafter “the instant photograph”) attached to the wall of the confinement room, etc. by Nonindicted 2 of the prison officer, but he was replaced with the purport that “the head capacity of the female female” was “the head capacity of the female,” and did not remove the instant photograph.

(2) After diving, Nonindicted Party 2, a correctional officer, took the Defendant into the 2 team office, made the Defendant write a self-written statement on the facts of non-compliance with the instructions. However, the Defendant, without complying with the inappropriate instructions, prepared a self-written statement on suspicions, etc. experienced by the correctional officer.

(3) As the correctional officer Nonindicted 1, the victim of the police patrol team, ordered the defendant to move to a ward for investigation to impose a disciplinary measure on the ground of the violation of the direction, the defendant argued that the documents to be submitted to the National Human Rights Commission in his room can be lost before moving to the ward for investigation.

(4) On the other hand, correctional officers, including the victim, should take the place later. On the other hand, they were moving from the 2st team office to the investigation ward, and attempted to have the defendant forced to move from the 2st team office to the investigation ward, and the defendant strongly resisted that he could not go to the investigation ward, and assaulted the victim's bridge.

(5) The correctional officers, including the victim, committed assault against the victim’s chest while refusing to undergo a autopsy to the defendant, and forced him/her to move into the ward for the investigation, and directed him/her off clothes for the physical examination. The defendant, who refused to undergo a autopsy to the effect that he/she “I am off,” committed assault against the victim’s chest.

B. The lower court reversed the first instance judgment convicting the Defendant and acquitted the Defendant on the following grounds.

(1) First, the lower court determined that: (a) the obligation of cleanliness under Article 32 of the Administration and Treatment of Correctional Institution Inmates Act (hereinafter “the Administration and Treatment of Correctional Institution Inmates Act”) should be maintained cleanly for the sake of public health; (b) it is difficult to deem that the Defendant failed to perform the cleanliness obligation or violated internal rules or matters to be observed by attaching a photograph to the wall, etc. of the confinement ward, etc.; (c) the photograph of this case was taken out from a newspaper, etc. permitted by the reading, and it is difficult to regard it as a degree of undermining the security and order in the correctional institution; (c) unless it obstructs the achievement of the correctional purpose; and (d) the uniform ban violates the human rights of prisoners under the Execution of Punishment Act, the prohibition of discrimination against the Constitution, or the principle of excessive restriction; and (e) the act of attaching the photograph of this case cannot be deemed as a lawful type of the photograph of the prisoner’s photograph to the effect that the photograph of this case contravenes the principle of respect for the human rights of prisoners under the Execution of Punishment Act, and the prohibition of discrimination;

Furthermore, as long as the act of ordering the removal of the instant pictures is illegal, the lower court determined that the series of execution of duties on the ground of the violation of the order, that is, the act of compelling the Defendant to accommodate in the investigative ward, and the act of demanding the autopsy for the purpose of confinement, is also unlawful.

(2) In addition, the court below determined that the above acts cannot be deemed lawful execution of duty, on the grounds that Article 110(1) of the Punishment and Execution Act provides that when a prisoner who has considerable grounds for suspecting that the defendant had committed an act falling under the grounds for disciplinary action as a requirement for separate confinement during the investigation period is likely to destroy evidence (Article 110(1) of the Act (Article 110(1)), or when there is a concern for causing harm to other persons, or there is a need to protect the defendant from danger of other prisoners (Article 2(2)). However, in light of the purpose of the defendant's confinement in the ward for investigation or the circumstance of demanding the defendant's confinement in the ward for investigation, the above act cannot be deemed as satisfying the requirements for confinement in the ward for investigation.

3. Judgment of the Supreme Court

A. We examine the legality of the act of ordering the removal of the instant pictures.

(1) Prisoners are obliged to keep their bodies and clothes clean and cooperate in maintaining cleanliness for their own ward, workplace, and other confinement facilities (Article 32(1) of the Execution Act), to comply with the rules set by the Minister of Justice for the security and maintenance of order of correctional institutions, and to comply with correctional officers’ official instructions for the maintenance of security and order of correctional institutions (Article 105(1) and (3) of the Execution Act), and to refrain from complying with correctional officers’ official instructions or orders without justifiable grounds (Article 214 subparag. 17 of the Enforcement Rule of the Administration and Treatment of Correctional Institution Inmates Act).

In addition to the purport of the above relevant provisions on the obligation of cleanliness and the regulation of prisoners, the act of a prisoner to attach photographs or pictures, etc. to a confinement facility beyond the scope permitted by the warden of the correctional institution has an inherent nature that damages the original clean condition of the confinement facility that the warden intends to maintain. The establishment of the permissible standard for attachment to a confinement facility is within the authority of the warden of the correctional institution, who is the manager of the confinement facility, and cannot be deemed to violate the principle of respect for human rights of prisoners under the Execution of Punishment Act (Article 4) or the principle of excessive prohibition under the Constitution. In full view of the fact that the above act of personal and discretionary attachment of the prisoner is likely to interfere with the maintenance of cleanliness of the confinement facility itself as well as the maintenance of order of communal life in the correctional facility, barring special circumstances such as the attachment of the attached object beyond the scope permitted by the warden, the act of the correctional officer ordering the removal of the attached object to the prisoner by his/her photograph or picture beyond the scope permitted by the warden shall be deemed legitimate execution of his/her duties.

(2) The following circumstances revealed by such legal principles and records are as follows: (i) in the Daejeon Prison where the Defendant was confined, a notice of the obligation to clean the prisoners to prohibit the attachment of pictures, etc. other than those affixed to the wall of the confined ward is given through “the guide for the living under confinement” or “the guidance for living under confinement,” which was kept in the confinement ward or corridor; (ii) in light of the environment of the prisoners, who are women entertainment in the confined ward, which are forced within the closed space, there is a high risk of undermining the maintenance of public order in the correctional institution by inducing sexual defense in itself; and (iii) the Defendant himself recognized that the Defendant had given a legitimate order in accordance with the provisions of the order of removal during the investigation process (the second prosecutor examination protocol against the Defendant), while considering the following circumstances, the Defendant’s act of removing the given pictures is not a legitimate one that complies with the order of the correctional officer to remove the given pictures without permission, even if it is not a violation of the correctional officer’s duty to remove the given pictures.

(3) Therefore, the lower court erred by misapprehending the legal doctrine on the legality of the execution of official duties, in so determining, that the act of ordering the removal of the instant pictures was an unlawful performance of official duties.

B. We examine the act of compelling the defendant to be confined in a ward for investigation and the legality of the act of demanding the autopsy for the purpose of confinement.

(1) Even in cases where it is necessary to investigate a prisoner who has considerable grounds to suspect that he/she committed an act constituting a ground for disciplinary action, the separate confinement of the prisoner in the investigation room is recognized only when the prisoner is likely to destroy evidence, or when the prisoner is likely to cause harm to others, or when it is necessary to protect him/her from harm to other prisoners, pursuant to each subparagraph of Article 110(1) of the Punishment Execution Act.

However, according to the records, it can be seen that the defendant's refusal of the defendant's request for a correction of the photograph of this case was the only cause of the defendant's act of compelling the defendant to be detained in the ward for investigation, and there is no evidence to prove that at the time the victim forced the defendant to be detained in the ward for investigation, there was a concern that the defendant would destroy evidence about the violation of the immediately preceding order, or that there was a risk of harm to others or himself. In addition, in the course of the defendant's attempt to force the defendant to be detained in the ward for investigation by the time of the defendant's assault, such as the facts charged in this case, there is no evidence to prove that the victim could exercise the force prescribed in Article 100 of the Punishment of Punishment Act against the defendant.

(2) If there are circumstances, the act of the victim's forced confinement of the defendant to a ward for investigation cannot be deemed lawful execution of duty because it does not meet the requirements for confinement in the ward for investigation under the Execution of Punishment Act. The act of demanding a autopsy for confinement is also based on illegal execution of duty, and thus cannot be deemed legitimate execution of duty.

C. Ultimately, the Defendant’s assault against the victim during the course of resisting the victim’s unlawful performance of duties, which is the act of forcing the Defendant to accommodate in the ward for investigation and the act of demanding to arrest for the purpose of confinement, does not constitute an obstruction of the performance of official duties. Therefore, the lower court reversed the first instance judgment that found the Defendant guilty of the facts charged of this case on the ground that there is no proof of the facts charged, and the conclusion that the lower court acquitted the Defendant of the charges of this case is justifiable. In so doing, contrary to what is alleged in

4. Conclusion

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

Justices Shin Young-chul (Presiding Justice)