[1] Whether the crime of obstruction of performance of official duties by fraudulent means is established in a case where a prisoner or a person other than a prisoner commits a violation of discipline by avoiding a correctional officer's surveillance and control (affirmative with qualification)

[2] The case affirming the judgment of the court below that an attorney-at-law's act of carrying a mobile phone and a securities transaction device for a prisoner into the detention house and allowing him to use it for interview constitutes the obstruction of performance of official duties by fraudulent means

[1] In full view of the provisions of Articles 45 and 46(1) of the Criminal Administration Act, Articles 3, 7(1) of the former Rules on the Regulation and Disciplinary Punishment of Prisoners (amended by the Ordinance of the Ministry of Justice No. 555 of Jun. 29, 2004), and Articles 47 and 54 of the Rules on the Duties of Correctional Officials, a prisoner is obligated not to use or give or receive non-permission articles, or communicate with other persons by telephone, etc. without permission, and a prisoner is subject to the general official authority and duty to report to his superior and submit them for disciplinary action. Thus, if a prisoner commits a violation of a correctional officer's regulation by avoiding surveillance and control, and if a person other than a correctional officer carries out a violation of a correctional officer's control or surveillance and does not constitute a crime of obstruction of performance of duties by fraudulent means, and even if a prisoner does not actively carry out his/her duties with a correctional officer and another person's act of carrying out his/her duties without permission or fraudulent means, it cannot be deemed that the prisoner's and other person's act are practically committed.

[2] The case affirming the judgment of the court below that an attorney-at-law's act of carrying a mobile phone and a securities transaction device for a prisoner into the detention house and allowing him to use it for interview constitutes the obstruction of performance of official duties by fraudulent means

[1] Article 137 of the Criminal Code, Articles 45 and 46 (1) of the Criminal Code / [2] Article 137 of the Criminal Code, Article 66 (1) of the Criminal Code

[1] Supreme Court Decision 2001Do7045 decided Nov. 13, 2003 (Gong2003Ha, 2394) Supreme Court Decision 2004Do272 decided Apr. 9, 2004

Defendant

Defendant

Attorney Kim Hong-sung

Seoul Central District Court Decision 2004No1270 Delivered on February 17, 2005

The appeal is dismissed.

In full view of the provisions of Articles 45 and 46(1) of the Criminal Administration Act, Articles 3, 7(1), and 47 and 54 of the former Rules on the Discipline and Disciplinary Punishment of Prisoners (amended by Ordinance of the Ministry of Justice No. 555 of Jun. 29, 2004), and Articles 47 and 54 of the Rules on Correctional Officers’ Duties, prisoners impose a duty not to engage in any violation of discipline, such as using or receiving non-permission articles, or communicating with other persons by telephone, etc. without permission. A correctional officer has a general official authority and duty not to report and submit them to his superior for disciplinary action. If a prisoner commits a violation under the surveillance and control of a correctional officer, not merely merely merely violates the prohibition provision, but also if a person other than a prisoner brings in goods under surveillance or surveillance by a correctional officer and does not have a duty not to carry out his/her duties with a correctional officer, and even if he/she finds it difficult for him/her to carry out his/her duties with another correctional officer, a deceptive scheme, etc.

After compiling the adopted evidence, the court below acknowledged the facts as stated in its holding. Article 34 of the Criminal Procedure Act provides that the right of counsel to meet and communicate with the unconvicted prisoner to guarantee the right to assistance of counsel under Article 12 (4) of the Constitution, and Article 66 (1) of the Criminal Procedure Act provides that a correctional officer may attend an interview with his/her defense counsel or not hear or record the contents of the interview with the unconvicted prisoner in order to ensure actual guarantee of such right to interview and communication. Accordingly, the correctional officer's act of visiting defense counsel is prohibited from carrying mobile phones voluntarily, and it is very difficult for the correctional officer to receive goods from the meeting room or to detect them from the outside without permission by the defense counsel because of the lack of the number of correctional officers monitoring compared to the number of visitors, and the act of having a defense counsel take place the mobile phone and the mobile phone transaction device into the detention house without permission by the defense counsel, which is the most difficult for the correctional officer to detect and use the suspect's right to contact with the defendant without permission.

Examining the records in light of the above legal principles and relevant statutes, we find that such judgment of the court below is just and acceptable, and there are no errors in matters of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles as to the crime of obstruction of performance of official duties through unlawful or deceptive means.

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

Justices Yoon Jae-sik (Presiding Justice)