The case holding that a threat to a police officer entering a ballot-counting place does not constitute obstruction of performance of official duties upon the request of the chairman of the election management committee for maintaining order;

According to Article 118 of the Election of National Assembly Members Act, only a uniform police officer may enter a ballot-counting place upon request of the chairman to assist the chairman in maintaining order. Therefore, a happy police officer cannot enter the ballot-counting place, and therefore, he/she is in a position in which he/she is unable to perform his/her official duties at the ballot-counting place. Therefore, even if he/she threatens with a knife, special crimes of obstruction of performance of official duties are not

Article 144 of the Criminal Act, Article 136 of the Criminal Act, Article 118 of the Election of National Assembly Members Act

Defendant

Prosecutor and Defendant

Busan District Court Msan Branch Court (79Gohap26)

The judgment of the court below is reversed.

The sentence of sentence against the defendant shall be suspended.

Of the facts charged in this case, the violation of Article 170 of the Election of National Assembly Members Act and the special obstruction of performance of official duties shall be acquitted

피고인의 항소이유의 요지는, 각 학교 운동회에 가사 돈 5,000원 기부한 것은 의례적인 행위에 불과하고, 피고인의 경력과 포부 등이 남긴 팜프렛을 배부한 행위는 피고인이 한 것이 아닐 뿐만 아니라 피고인의 아버지 등이 피고인과는 아무 상의도 없이 배포한 것이며 또한 당원용으로 인쇄해 두었던 것이며, 개표시 무더기표가 나오자 피고인의 참관인들이 소란한 행위를 함에 있어 피고인은 오히려 이를 제지하고 정당한 절차를 취할 것을 종용함으로써 고성경찰서 경비과장이 피고인을 개표소 밖으로 끌어내려 할 때 피고인은 장도칼을 들고서 자신의 복부를 찌르는 시늉을 하였지만 정복도 착용하지 아니한 부당한 공무집행에 항거하여 퇴장당하지 않으려고 항거 내지는 자구행위를 한 것에 불과함에도 불구하고 원심은 사실을 오인하고 의률의 잘못이 있고, 양형도 부당하다는 취지이고, 검사의 항소이유의 요지는 원심의 양형이 너무 가벼워 부당하다는 취지이다.

In light of the evidence duly admitted by the court below as to the facts constituting the crimes of 1 and 2 at the time of the original trial, it can be sufficiently recognized according to the evidence duly admitted by the court below. In addition, each of the facts at the time of the original trial was at the time of the original trial, and it cannot be viewed as a mere courtesy unless there was a special invitation, and there was a special invitation. Accordingly, the assertion of misunderstanding of facts as to this part is groundless.

However, as to the fact that the Defendant, at the time of the original trial, carried out an act of disturbance of the 10th election, from 02:30 on December 13, 1978 to 03:0 on the same day, at the 10th election day, at the 3rd Sung-gun office, which was carried out at the 10th ballot-counting place, around the time when the ballot counting of the 10th election district was carried out at the 10th election of the 10th election district, there is no possibility that the Defendant would have carried out an act of disturbance of the 10th election. According to the testimony of the court below, as the Defendant 1, 2, and 3, there is no possibility that the Defendant would interfere with the ballot counting of the 1st election at the 4th election district, and that the Defendant would not open the 1st ballot-counting place at the 1st election, and that the Defendant would have opened the 1st ballot-counting place at the 1st ballot-counting place at the 4th election commission.

Furthermore, according to Article 118 of the Election of National Assembly Members Act, with respect to the obstruction of special public affairs at the time of the original adjudication, only the election-related personnel or witness can not enter the ballot-counting place without attaching a specific captain on the chest, and the ballot-counting management chairman can request the assistance of police officers in uniform to maintain the order of the ballot-counting place because the order of the ballot-counting place is too disturbed and the fair ballot-counting can not be carried out because the order of the ballot-counting place is too disturbed as a resolution of the committee.

Thus, even if it is recognized that the defendant had a knife with the knife and threatened the chief of the police station guard, it can be seen that the non-indicted 2 was a knife, not a knife, but a knife with the knife, according to the data shown in the records, and in addition, the non-indicted 12 of the ballot-counting chairman instructed the two persons, namely, the two persons, namely, the non-indicted 9 and the non-indicted 10, and brought them into the polling station, even if the status of the non-indicted 2 is a police officer, the police officer who did not wear the knife cannot enter the polling station, and therefore, in the above ballot

On the other hand, there is no room for special obstruction of performance of official duties, regardless of the composition of other crimes such as violence, etc. by threatening him as the facts charged.

Therefore, in the above two points, the appeal by the defendant is reasonable, and the appeal by the prosecutor is groundless.

Therefore, the judgment of the court below is reversed by accepting the defendant's appeal and it is again decided as follows.

At the time of the 10th election for the National Assembly member conducted on December 12, 1978, the Defendant was a person who was a candidate for the 3rd election for the 10th National Assembly member and was born.

1. A person who intends to be a candidate shall be a candidate for the purpose of making him elected, with the knowledge that he is unable to make a contribution act to a person in the constituency concerned, from 180 days before the term of a National Assembly member expires to the election day;

(A) On September 12:00 on September 9, 1978, in order to order Nonindicted 13, who is a director of the Korea Sports Promotion Association at an open athletic establishment in the correction of the Dong-gun National School located in the Dong-gun-gun, Chungcheongnam-do, Chungcheongnam-do., 5,000 won in cash, as well as to order him/her to record his/her history.

(B) 5,000 won in cash to Nonindicted 14 at the sports promotion meeting site of the Korean National School Sports Promotion Association located in the same group on the 10:30 on the 21st of the same month.

(C) At around 11:00 of the same month, 5,000 won in cash to Nonindicted 15 of the president of the Sports Promotion Council at the sports competition place at the National School of the Republic of Korea located in the same group as the above-mentioned group.

(D) At the 12:00 of the same month, at the 16th anniversary of the establishment of each Eup/Myeon civil defense unit in the same Dong-gun, which was held at the 12:00 of the same month, the 14 Eup/Myeon civil defense unit in the same place from 12:00 to 13:00, the 22,820 won at the market price at the 14th of each Do Do 14th of Do Do 14th of each Do Do 14th of 14th of Do Do 22,820 won.

(E) At around 15:00 on the 25th day of the same month, 5,000 won in cash to non-indicted 17 at the sports center of the Song National School at the Song National School located in the same group.

(f) At around 26:30 of the same month, 5,000 won in cash to Nonindicted 18, who was general of the Dong school sports-friendly societies, at the sports competition site at the Young-dong National School located in the same Young-gu, Young-gu, Seoul.

(G) Around 16:00 on the same day, to the President of the Havi National School Sports Games at the Seocho-gu, Dan National University at 16:00, by providing 5,000 won in cash to the teachers and staff of the Dong school through Nonindicted 19 of the Dong school principal; and

2. Purpose of making himself elected during the election campaign period; and

(A) On December 1, 1978, around 13:30 on December 1, 1978, 1978, at the front of the office of the Mutual Finance Department of the Gosung-gun, Gosung-gun, Gosung-gun, Gosung-gun, Gosung-gun, and distributed printed materials stating his career experience and correspondence to the non-indicted 20 other than those.

(B) Around the May of the same month, approximately 1,00 copies of printed matters, including letters, career letters, etc. that appeal their support by using a sexual post office, impulse post office, etc., sent to Nonindicted 21, an elector living in a constituency, and sent them to Nonindicted 21, etc., who is the elector living in a optical map of Tong-gun, and distributed the documents in a way other than that provided for in each election law.

The above findings of the judgment

1. The description of the party trial and the statement corresponding to it in the original trial;

1. Examination protocol of the accused of the public prosecutor and each statement corresponding thereto;

1. Each statement made on Nonindicted 14, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 39, 40, 41, 42, 43, and 444;

Comprehensively taking account of the foregoing, the certification is sufficient.

Each so-called "(a) or (g) of the judgment of the defendant is subject to Articles 183 (1), 77 (1), 2-(a), and 68 (1) of the Election of National Assembly Members Act. Each so-called "(b)" refers to Article 183 (1), 77 (1), 2-(a), and 68 (1) of the same Act, and Article 182 (2) of the same Act, and Article 4 (5) of the Aggravated Measures such as Fines, etc. Act, increases under Article 4 (5) of the same Act, and each of the above crimes is concurrent crimes under the former part of Article 37 of the same Act. Thus, the punishment shall be imposed pursuant to Articles 38 (1) 2 and 50 (2) of the same Act, and the defendant shall be punished by a fine not exceeding 300,000 won, and if the defendant does not pay the above fine, the defendant shall be confined to the period of imprisonment under Article 57 (9) of the Aggravated Punishment Act.

The facts charged regarding the non-guilty portion

Defendant

1. On December 13, 1978, in collaboration with Nonindicted 9 and 10, from around 02:30 on December 13, 1978 to around 03:00, at the 3rd ballot-counting place, the office of the High Military Administration located in the Sung-gun Sung-gun's Sung-gun's Sung-gun's Sung-gun's Sung-gun's Sung-gun's Sung-do, the office of the 3rd Sung-do's Sung-gun's Sung-gun's Sung-do, mixed with non-indicted 9 mixed with non-indicted 26 ballot papers without any strings, she added up the ballot-counting box with no strings, and then, the ballot-counting at the same ballot-counting management committee's meeting with non-indicted 4's emergency ballot-counting, and then the defendant again ordered the non-indicted 10's ballot-counting to open the ballot-counting at the 1st ballot-counting place with a 26th ballot-counting.

2. At the above temporary location, Nonindicted 2, who was called upon Nonindicted 4’s aid request, the chairman of the Gosung Police Station guard division, the chairman of the said ballot-counting management committee, shall extract a knife (Evidence No. 1) which is a dangerous object in possession of Nonindicted 2, who was in his possession, demanded him to leave the disturbance, and thereby interfere with Nonindicted 2’s execution of public duties for organizing order in the ballot-counting place by threatening Nonindicted 2, as the knife Nonindicted 2’s hand, as the knife and knife is in his hand, and as such, he would interfere with the execution of public duties for organizing order in the ballot-counting place. As seen above, the above part of the crime is not proven or has not been a crime.

It is so decided as per Disposition with the above reasons.

Judges Kim Ho-young (Presiding Judge)