[1] Whether the act of submitting a false evidence to an investigation agency by manipulating it constitutes a crime of obstruction of performance of official duties by fraudulent means

[2] The case holding that the obstruction of performance of official duties by deceptive means is established on the grounds that, in a case where a voice response by a philophone was caused to an investigation agency as a consequence of the other person's urine, as one of his own urines, the act of causing a voice response by a philophone, actively fabricated the evidence

[1] Article 137 of the Criminal Act / [2] Article 137 of the Criminal Act

[1] Supreme Court Decision 71Do186 delivered on March 9, 1971 (No. 19-1, 111)

Defendant

Defendant

Attorney Cho Jin-tae

Busan District Court Decision 2007No1300 Decided July 5, 2007

The appeal is dismissed. 90 days out of detention days after the appeal shall be included in the original sentence.

The grounds of appeal are examined.

In investigating a criminal case, an investigative agency has the right and duty to determine a suspect regardless of the statement of a suspect and to collect and investigate objective evidence to recognize the suspected fact. Meanwhile, a suspect has the right to refuse to make a statement and a right to present favorable evidence in favor of himself/herself, but does not have the duty to make a false statement to an investigative agency. Therefore, even if a suspect, etc. has made a false statement or submitted false evidence to an investigative agency, if a suspect, etc. made a false conclusion only with such false statement and evidence without sufficient investigation by the investigative agency, it cannot be deemed as a crime of obstruction of performance of official duties by fraudulent means because it cannot be deemed as impeding investigation by fraudulent means such as a suspect, etc. as a result of insufficient investigation by the investigative agency. However, if a suspect or a witness actively submitted false evidence by manipulating a false evidence and the investigative agency made a false conclusion due to the result of evidence manipulation, which would result in the failure of the investigative agency to discover that evidence is submitted, this is actively obstructed by deceptive means, and thus, it is not permissible to give criminal punishment to him/her by fraudulent means.

Based on the above legal principles, the defendant's act of causing the voice reaction of a philophone as if he was one's own defense, does not merely mean that the suspect simply made a false fact against the investigation agency or concealed any evidence unfavorable to him, but also actively fabricated the evidence concerning the suspected criminal fact by using mistake of the investigation agency, and thus, the obstruction of performance of official duties by deceptive means is established. And the assertion that delayed the transfer of evidence is not a legitimate ground of appeal.

Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)