The case holding that the judgment below acquitted a police officer of obstruction of performance of official duties on the ground that the defendant's act of avoiding disturbance during the night time constitutes "Assault" as provided in Article 136 of the Criminal Act, on the ground that there is room for the defendant's indirect force force with regard to a public official's use of force, and on the contrary, there is room for the defendant's act of avoiding disturbance during the night time as mentioned above, in case where the defendant was made a speech to insult a police officer in a large amount of about one hour and forty minutes in the earth, lying away from the earth, putting a view on another person, putting a view to other persons, leaving a door to open the door to open the door again after the police officer asked the defendant, or putting the door up to open the door to open the door to open the door again.

Article 136(1) of the Criminal Act

Defendant

Defendant and Prosecutor

Seoul Central District Court Decision 2013No1566 decided August 29, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

We examine the grounds of appeal.

1. As to the Defendant’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly adopted or maintained by the first instance court, the lower court’s determination that the Defendant was guilty of interference with business among the facts charged in the instant case on the grounds stated in its reasoning is justifiable and did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical

2. As to the Prosecutor’s ground of appeal

A. Of the facts charged in the instant case, the part of the charges of obstruction of the performance of official duties shows words and actions on the ground that “the Defendant submitted a summary trial on September 17, 2012 regarding obstruction of business among the facts charged in the instant case within the Maak Musan District,” and Nonindicted 1 and Nonindicted 2, the circumstances leading up to Nonindicted 2, who were affiliated with the said global group, are aware of the receipt of money and valuables from the business owner in the jurisdiction, and sent them to Gahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh

B. First, we affirm the judgment below that it is difficult to view the Defendant’s act as a intimidation of the crime of obstruction of the performance of official duties in light of the Defendant’s criminal record, the specific contents of the statement, the response of the police officers from the earth area, and the number of police officers working in the earth area at the time, etc., which are revealed by the evidence duly admitted by the court of first instance that the Defendant’s act constituted intimidation of the crime of obstruction of the performance of official duties. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical

C. However, we cannot accept the judgment of the court below that the defendant's act constitutes an assault against the obstruction of performance of official duties.

According to the evidence duly adopted by the first instance court, which directly adopted or maintained by the court below, it can be acknowledged that the defendant avoided the disturbance, such as: (a) under the influence of alcohol at the above time and at a location, the defendant made a speech that the police officer is fluoring him/her at a large amount of 1 hour and 40 minutes; and (b) lying the police officer at the seat of the atmosphere in the process, lying the defendant at the seat of the atmosphere, or putting him/her a view to other persons; and (c) putting the police officer at the seat of the atmosphere; (d) putting him/her out the office without complying with the request of the police officer to return the defendant; and (e) continuing opening or cutting the entrance to re-enter the defendant; and (e) the defendant was under the influence of alcohol at the night, and it is evident that the defendant's act of avoiding the disturbance during the above time is sufficient to interfere with the legitimate performance of public official's duties; and (e) the exercise of indirect tangible force to the public official, which constitutes

Nevertheless, the lower court determined that the Defendant’s above act constituted a case where there is no evidence of a crime of obstruction of performance of official duty without complying with the specific contents that can be seen as a police officer’s exercise of force against a police officer, such as the location of police officers working in the earth at the time when the Defendant set up a district entrance, the distance between police officers and entrance doors, the continuous time when the Defendant’s act continues, the degree of physical force exercised by the Defendant, and the entrance structure, etc.

3. Scope of reversal

As above, there exists a ground for reversal of the charges of obstruction of the performance of official duties among the charges of this case, and the charges of obstruction of the performance of official duties, which the court below found guilty, should be sentenced to one punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)