[1] Whether the crime of obstruction of performance of official duties by fraudulent means is established in a case where a public official simply avoided surveillance and control (negative)

[2] The case holding that the crime of obstruction of performance of official duties cannot be established by fraudulent means where a prisoner is committed a violation of discipline by avoiding a correctional officer's surveillance and surveillance, and where a person other than a prisoner brings the prohibited goods into the correctional institution by avoiding a correctional officer's inspection or surveillance

[1] Article 137 of the Criminal Act / [2] Article 137 of the Criminal Act; Articles 7, 45(1), 46(1)5, and 68 of the Criminal Administration Act; Articles 3 subparag. 5, 21, and 7(1)1 of the Rules on Punishment of Prisoners; Articles 36(1), 44(1), (2), (3), 47(1) and (3), and 54(1) of the Rules on Correctional Officers’ Duties

[1] [2] Supreme Court Decision 2001Do7045 decided Nov. 13, 2003 (Gong2003Ha, 2394)

Defendant

Prosecutor

Cheongju District Court Decision 2003No1043 delivered on December 17, 2003

The appeal is dismissed.

In a case where a statute orders the prohibition of an act in violation of the prohibition and imposes a penal provision on an act in violation of the prohibition, and where a public official conducts surveillance and control over 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 in violation of the prohibition provision by avoiding surveillance and control of a public official, it shall not be deemed that the act constitutes obstruction of performance of official duties by fraudulent means, regardless of the application of the penal provision to the public official.

Article 45 (1) of the Criminal Administration Act provides that "a prisoner or unconvicted prisoner shall observe the regulations prescribed by the Minister of Justice." Article 46 (1) 5 of the same Act provides that "If a prisoner violates the said regulations, a disciplinary measure may be imposed on him/her." Article 68 of the same Act provides that "a prisoner shall be placed in custody in a police agency shall correspond to provisional detention facilities." Article 3 of the Rules on the Punishment of Prisoners, which provides that "the prisoner shall not enter or smoke from, or carry, alcoholic beverages or tobacco with another person by telephone, etc." subparagraph 5 of the same Article provides that "the prisoner shall not carry the prisoner's personal clothes or clothes, etc." and "the person in charge of correctional officers shall carry the prisoner's personal clothes or clothes, etc." and Article 7 (1) 1 of the same Rules provides that "the prisoner shall carry the prisoner's personal clothes or clothes without delay and shall inform the head of the relevant correctional institution or his/her agent of the same fact, and the warden shall, if any, without delay, inform the prisoner of his/her personal clothes or clothes of the prisoners,".

In full view of the above provisions of the law, a prisoner is obliged not to smoke, or possess, receive, exchange, or conceal a tobacco, and a correctional officer has a general official authority and duty to monitor, regulate, and detect a prisoner's violation of discipline and to report it to his superior and submit it to the disciplinary action. If a correctional officer performing surveillance and control duties is unable to perform his duties using a deceptive scheme, the crime of obstruction of performance of duties by fraudulent means is established. However, if a prisoner's violation of the prohibition provision is merely a mere violation of the prohibition provision, it cannot be said that the violation of the prohibition provision is committed. Even if a person other than a prisoner brings the prohibited goods into the correctional institution by avoiding the correctional officer's inspection or surveillance, it cannot be said that the act of obstruction of performance of duties by fraudulent means constitutes a crime of obstruction of duties by means of fraudulent means (see Supreme Court Decision 200Do1345, Jul. 13, 200).

The court below is just in light of the above legal principles and there is no error of law by misunderstanding the legal principles as to the charges of obstruction of performance of official duties through fraudulent means.

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

Justices Zwon (Presiding Justice)