Defendant

Defendant and Prosecutor

Kim-ok (prosecution) and a public trial;

Attorney Jeong-young (National Assembly Line)

Daejeon District Court Decision 201Da2453 Decided June 22, 2012

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. Defendant (De Facto misunderstanding or misunderstanding of legal principles)

Although the Defendant, while taking a bath after a prison officer’s breath, her head was danced on the chest of the above prison officer, the Defendant did not recognize that Nonindicted 2, at the time of the instant case, did not recognize that the correctional officer’s act of attaching an artist’s photograph to the wall of the confinement room was prohibited, and did not recognize that the Defendant violated the matters to be observed by failing to notify in advance that the act was prohibited. In addition, in the process of moving the Defendant to the confinement room, even though the Defendant did not trust the correctional officer’s trust, the Defendant attempted to directly carry his own goods to the confinement room without disregarding the Defendant’s justifiable demand, and thus, the Defendant’s act cannot be deemed legitimate execution of official duties. This act by the correctional officer is merely a passive defensive act against the police officer’s above illegal performance of official duties. Thus, it constitutes legitimate act that does not violate

(b) An inspection;

The sentence of the lower court (a fine of three million won) is too unhued and unreasonable.

2. Judgment on the defendant's assertion

A. Summary of the facts charged in this case

On January 5, 201, at around 10:20 on January 10, 201, the Defendant: (a) at the 2st team office of Daejeon Prison, which was located in the Seodong-dong of Daejeon Seodong-gu, the Defendant: (b) 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 a ward on December 2010, because it is a violation of the clean duty; (c) thus, the Defendant was ordered to move the victim’s bridge, who belongs to the said prison security and patrol team, to the investigation room and undergo an investigation; (d) he directly brought his own things; and (e) was supbling the victim’s dub

At least 10:30 on the same day, the Defendant: (a) expressed that the Defendant requested the examination at the above prison investigative room of the said prison, “I am blurine, var, who was placed in the ward for the investigation on the bitch bitch bitch bitch bitch bitch bitch, which is not a bitch bitch bitch bitch bitch bitch bitch bitch bitch bitch bitch bitch,” and committed assault, such as taking the head of the Defendant on the victim’s chest on

Accordingly, the defendant assaulted the above victim and interfered with correctional officers' legitimate execution of duties concerning guidance, treatment and safe guard of prisoners.

B. The judgment of the court below

The court below found the defendant guilty of the facts charged in this case by taking full account of the evidence in its judgment.

C. Judgment of the court below

1) Related Supreme Court decisions and Constitutional Court decisions

The crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. Here, legitimate performance of official duties refers to not only where the act belongs to the abstract authority of the public official, but also where the specific requirements and methods are met. Thus, even if the act of assault or intimidation against the public official performing the act of lack of legality, it cannot be deemed as a crime of obstruction of performance of official duties (see Supreme Court Decisions 2010Do8591, Oct. 14, 2010; 2004Do4731, Oct. 28, 2005, etc.).

In addition, even in a case of a convicted prisoner, the State’s duty to confirm and guarantee the fundamental human rights of the sentenced person (Article 10 of the Constitution), and thus, the freedom and rights that are expected to be restricted to the status of a convicted prisoner should be limited to several fundamental rights, such as the freedom of body and the transfer of residence related to the purpose of detention, such as the execution of a sentence and the prevention of escape, and that may not escape from the necessary scope. In particular, regulations and restrictions on fundamental rights through disciplinary action conducted to maintain order and safety within the confinement facility should be exceptionally allowed only when the convicted prisoner suffers from the pain that is added to the confinement, and the purpose cannot be achieved in any other way. Accordingly, the specific limitation on fundamental rights of the convicted prisoner should be set up by law pursuant to Article 37(2) of the Constitution, including the contents and nature of the specific freedom and rights, and the form and degree of such restriction. Even if it is inevitable to partially restrict these fundamental rights in order to maintain safety and order within the confinement facility, such restriction should not infringe on the essential justification thereof, the purpose thereof, the appropriateness of damage, the minimum extent and the principle of balance.

2) recognised fundamental facts

In light of the above legal principles, the following circumstances are acknowledged according to the evidence duly adopted and examined by the court below and the court below.

A) On January 19, 2004, the Defendant was sentenced to 10 years of imprisonment with prison labor for a crime of violation of the Act on the Punishment of Sexual Crimes and Protection of Victims, etc. (special robbery, Rape, etc.) at the Daejeon District Court, and was detained in the Daejeon Correctional Institution on August 12, 2010, and was subject to disciplinary action against other prisoners including some correctional officers by bringing in the prohibited goods in the correctional institution and filing a complaint on the fact that other correctional officers left the prison. At the time of the instant case, the Defendant alleged that he was receiving unfair treatment, such as assault, etc., from the correctional officers and filed a complaint against the correctional officers, and filed a complaint with the National Human Rights Commission on human rights.

B) Under the above circumstances, Nonindicted 2 instructed the correctional officer Nonindicted 2 to dump the swimming photo of a female artist attached to the wall of the confinement room, etc. on the day of the instant case, but the Defendant did not dump the photograph by “man’s mother capacity” and did not dump the photograph. After the locking, Nonindicted 2, a correctional officer, who took the Defendant into the 2 team office, made the Defendant write a self-written statement on the facts of non-compliance with the correctional officer’s instructions, but the Defendant did not comply with the correctional officer’s instructions, and prepared a self-written statement on suspicions, etc. experienced from the correctional officer without complying therewith.

C) As a correctional officer ordered the defendant to move his arms to a ward for the purpose of imposing a disciplinary measure on the grounds of violation of instructions, the defendant argued that the documents, etc. to be submitted to the National Human Rights Commission on his own room may be lost before moving to the ward for the investigation, but the correctional officer later brought about the room for the investigation. As a result, the correctional officer moved from the 2 team office to the ward for the investigation, and forced the defendant to move the defendant to the ward for the investigation, and forced the defendant to move the defendant to the ward for the investigation, and led the defendant to the defendant to the ward for the investigation. The correctional officer sawd the head of Non-Indicted 1 in the process of making the defendant unable to go to the ward for the investigation. The correctional officer forced the defendant's arms and forced the defendant to go to the ward for the investigation, and ordered the defendant to get off the clothes for the physical examination, etc., the defendant took a warning to the effect that "I n't n't you will get about the chest of Non-Indicted 1."

D) Ultimately, the Defendant was subject to a disciplinary measure on January 21, 201, which was 45 days worth being imposed on the Defendant. The grounds for the disciplinary measure are as follows: (a) the Defendant committed an act contrary to the criminal law, such as assaulting a correctional officer in the course of accompanying the investigation and confinement; and (b) manufactured or brought in illegal goods; and (c) the Defendant did not include the fact that the Defendant violated the obligation of cleanliness by attaching the instant

3) Determination on the legality of performance of duties

A) First, we examine whether the act of Nonindicted 2’s correctional officer directed the Defendant to detached an artist’s photograph is legitimate.

Article 32 of the Administration and Treatment of Correctional Institution Inmates Act (hereinafter “The Administration and Treatment of Correctional Institution Inmates Act”) provides that prisoners shall keep their bodies and clothes clean and cooperate in maintaining cleanliness of their own ward, workplace, and other confinement facilities. Article 105(3) of the same Act provides that prisoners shall obey a correctional officer’s instructions on his/her duties. The phrase “living guidance in prison” attached to the corridor in the correctional institution at the time of the instant case includes the phrase “Prohibition of attachment, such as a picture, etc. other than a letter or a picture, other than a document or a tag permitted on the wall,” so prisoners of the correctional institution cannot freely permit any act of attaching pictures or pictures to the wall of the ward, etc., and it is recognized that the correctional officer’s appropriate supervision and direction requires restriction to a certain extent.

However, according to the above decision of the Constitutional Court and Article 4 of the Execution Act, the human rights of prisoners should be respected to the maximum extent. The restriction is limited to the minimum necessary extent to achieve the purpose of executing punishment and preventing escape. Furthermore, according to Article 26 of the Execution Act, prisoners may possess correspondence, books and other goods necessary for prison life within the scope determined by the Minister of Justice. According to Article 47 of the same Act, prisoners shall be permitted to apply for subscription to newspapers, magazines, or books except for harmful publications. ② The duty of cleanlines of Article 32 of the Execution Act is to maintain the body and clothes, prison facilities, etc. of prisoners for their own health, and it is difficult to view that the prisoners violated the above duty of cleanliness to the extent that they failed to perform their duty of cleanliness or violated their internal rules or rules that are prohibited from being attached to the prisoners’ body and clothes, etc., as stated in the above, and it is difficult for the prisoners to view that they were in violation of the aforementioned legal purpose to maintain the prisoners’ body and clothes, etc.

B) Next, we examine whether a correctional officer’s exercise of force to accommodate a criminal defendant in a ward at the time of the instant case, and use protective equipment (a protective equipment) and the act of demanding an autopsy is legitimate.

The initial purpose of Nonindicted 2’s correctional officer’s attempt to accommodate the Defendant in an investigative ward at the time of the instant case appears to be to impose a disciplinary measure on the ground that the Defendant violated the duty of cleanliness. As seen earlier, the correctional officer’s instruction to remove the attached object is unlawful. As such, the continuous correctional officer’s act that took place thereafter is an act of the correctional officer, namely, the continuous correctional officer’s act that is, the correctional officer’s act of forcing the Defendant to prepare a written self-statement and forced the Defendant to expropriate the Defendant in the investigative ward

In addition, according to Article 110(1) of the Criminal Procedure Act, in order for a prisoner to be confined separately during the investigation period, there are reasonable grounds to suspect that the prisoner committed an act corresponding to the grounds for disciplinary action. Furthermore, even in a case where there are reasonable grounds, a person subject to disciplinary action is likely to destroy evidence, and a person subject to disciplinary action is likely to cause harm to others or a person in need of protection from harm to other prisoners. In this case, even though it is difficult to see that the defendant violated a cleanlines duty as seen earlier, it is difficult to view that a correctional officer satisfied all the above requirements at the time of separate confinement of the defendant in the investigation room.

However, it seems that the direct cause of the act of the correctional officer interfered with the execution of official duties by assaulting the Defendant by sculping Nonindicted 1’s flaps with the Defendant at the time of the instant case, and the Defendant’s act can be seen as satisfying the requirements for the imposition of disciplinary punishment and the use of protective gear.

However, as seen earlier, it should be seen that the Defendant’s act of drinking 1 of a prison officer did not constitute a crime of obstruction of the performance of official duties as it was contingent in the process of opposing the above illegal performance of duties by a prison officer. However, the act of a prison officer’s use of protective outfits under the premise that the Defendant’s act at the time of the instant case constitutes a crime of obstruction of the performance of official duties shall be deemed an unlawful performance of duties. Furthermore, immediately after that, it is difficult to view that the Defendant’s act of forcing the Defendant to accommodate the Defendant in the ward for investigation on the ground that the Defendant committed an act in conflict with the criminal law as above, and a series of acts demanding the Defendant

4) Determination as to whether the Defendant’s assault constitutes the crime of obstruction of performance of official duties

In full view of the above circumstances, since the correctional officer's act at the time of the instant case does not meet the legal requirements and methods concerning specific execution of official duties, it cannot be deemed as constituting a crime of obstruction of performance of official duties. Furthermore, even when examining the developments and degree of each of the instant violence, it is only deemed that the instant correctional officer's act committed a serious contingent act in the process of resisting that the instant correctional officer, etc. unlawfully led the Defendant to be forced to separate the Defendant into the ward for investigation, and the subsequent violence during the process of inspection is merely the degree of hindering the Defendant's head by getting the chest of the instant correctional officer while strongly resisting the Defendant's request for illegal investigation and inspection. Therefore, it is insufficient to recognize that the Defendant interfered with the lawful execution of official duties by the evidence submitted by the prosecutor alone.

5) Sub-committee

Ultimately, since the facts charged against the defendant constitute a case where there is no proof of crime, the court below rendered a conviction against the defendant under the latter part of Article 325 of the Criminal Procedure Act, but the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby affecting the conclusion of the judgment. The defendant's assertion pointing this out

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the decision shall be rendered again after pleading (Provided, That as long as the judgment of the court below is accepted by the defendant's appeal and reversed, the prosecutor's appeal

The summary of the facts charged in this case is the same as that of Article 2-1(a) and this constitutes a case where there is no proof of crime as stated in Article 2-2(c) and thus, a defendant is acquitted under the latter part of Article 325 of the Criminal Procedure

Judges Jeong Jong (Presiding Judge) (Presiding Justice)