Crimes of Obstruction of the Performance of Official Duties

Home > Sentencing Guidelines > Crimes of Obstruction of the Performance of Official Duties
Promulgated on March 21, 2011, Effective on July 1, 2011


  1. 1. OBSTRUCTION OF OFFICIAL DUTIES
공무집행방해 양형기준
Type Classification Mitigated
Sentencing Range
Standard
Sentencing Range
Aggravated
Sentencing Range
1 Obstruction of Performance
of Official Duties/Coercion of
duties
~ 8months 6months
~ 1yr 4months
1yr ~ 4yrs
2 Obstruction of Performance
of Official Duties by Deceptive
Means
4months
~ 10months
8months
~ 1yr 6months
1yr ~ 3yrs
공무집행방해 양형기준
Classification Mitigating Factor Aggravating Factor
Special
Sentencing
Determinant
Conduct
  • Extent of Violence, Threat, or
    Deceptive Means Used is Slight
  • Extent of Performing the Official
    Duties was Excessive or
    Inappropriate
  • Demonstrating the Organization’s
    Power or the Power of the
    Multitude; Otherwise Offense
    Committed While Carrying a
    Dangerous Object (Type 1)
  • Serious Bodily Injuries (Type 1)
  • Offense Committed Against
    Numerous Public Officials (Type 1)
  • Significant Obstruction of Official
    Duties
  • Repeated Crimes That Does Not
    Constitute as Concurrent Crimes
  • Instigating the Subordinate Person
    to Commit the Offense
Actor/etc.
  • Those with Hearing and Visual
    Impairments
  • Those with Mental Incapacity
    (Cases Where the Offender Cannot
    be Held Liable)
  • Voluntary Surrender to Investigative
    Agencies
  • Offender Expresses Remorse and
    the Victim Opposes Punishment
    (Type 1, Cases with Serious Bodily
    Injury)
  • Repeated Offenses of the Same
    Type under the Criminal Act
General
Sentencing
Determinant
Conduct
  • Passive Participation
  • Premeditated Crime
  • Cases Resulting in Less Serious
    Bodily Injuries (Type 1)
Actor/etc.
  • Those with Mental Incapacity
    (These Are Cases Where the
    Offender Can be Held Liable)
  • No Prior Criminal History
  • Offender Expresses Remorse and
    the Victim Opposes Punishment
    (Type 1, Cases with Non-serious
    Bodily Injury)
  • Repeated Offenses of Different
    Type under the Criminal Act,
    Criminal History of Imprisonment by
    the Same Type of Offenses that
    Does not Constitute Repeated
    Offense under the Criminal Act
    (This Applies When the Criminal
    History is Within Ten Years After
    Completion of Sentence)
  1. 2. NVALIDATION OR DESTRUCTION OF OBJECTS USED FOR PUBLIC PURPOSES
공무집행방해 양형기준
Type Classification Mitigated
Sentencing Range
Standard
Sentencing Range
Aggravated
Sentencing Range
1 invalidation of Objects Used
for Public Purpose
~ 8months 6months
~ 1yr 6months
1y r~ 4yrs
2 Destruction of Objects Used
for Public Purpose
6months
~ 1yr 6months
10months
~ 2yrs 6months
2yrs ~ 5yrs
공무집행방해 양형기준
Classification Mitigating Factor Aggravating Factor
Special
Sentencing
Determinant
Conduct
  • Value of the Invalidated or
    Destroyed Object is Insignificant
  • Extent of Performing the Official
    Duties was Excessive or
    Inappropriate
  • Demonstrating the Organization’s
    Power or Leveraging Through the
    Power of Multitudes Otherwise,
    Offense Committed While Carrying
    a Dangerous Object
  • Serious Bodily Injuries
  • Repeated Crimes That Does Not
    Constitute as Concurrent Crimes
  • Instigating the Subordinate Person
    to Commit the Offense
Actor/etc.
  • Those with Hearing and Visual
    Impairments
  • Those with Mental Incapacity
    (Cases Where the Offender Cannot
    be Held Liable)
  • Voluntary Surrender to Investigative
    Agencies
  • Offender Expresses Remorse and
    the Victim Opposes Punishment
    (Cases with Serious Bodily Injury)
  • Repeated Offenses of the Same
    Type under the Criminal Act
General
Sentencing
Determinant
Conduct
  • Passive Participation
  • Premeditated Crime
  • Cases Resulting in Less Serious
    Bodily Injuries
Actor/etc.
  • Offender Expresses Remorse and
    the Victim Opposes Punishment
    (Cases with Non-serious Bodily
    Injury)
  • Invalidated or Destroyed Object
    Recovered
  • Those with Mental Incapacity
    (These Are Cases Where the
    Offender Can be Held Liable)
  • No Prior Criminal History
  • Repeated Offenses of Different
    Type under the Criminal Act,
    Criminal History of Imprisonment by
    the Same Type of Offenses that
    Does not Constitute Repeated
    Offense under the Criminal Act
    (This Applies When the Criminal
    History is Within Ten Years After
    Completion of Sentence)
  1. 3. EXTRAORDINARY CASES INVOLVING OBSTRUCTION OF OFFICIAL DUTIES RESULTING IN BODILY INJURIES OR DEATH
공무집행방해 양형기준
Type Classification Mitigated
Sentencing Range
Standard
Sentencing Range
Aggravated
Sentencing Range
1 Particular obstruction of
official duties Resulting in
Bodily Injuries
1yr 6months ~ 3yrs 2yrs ~ 4yrs 3yrs ~ 6yrs
2 Particular obstruction of
official duties Resulting in
Death
3yrs ~ 6yrs 5yrs ~ 8yrs 7yrs ~ 10yrs
공무집행방해 양형기준
Classification Mitigating Factor Aggravating Factor
Special
Sentencing
Determinant
Conduct
  • Performance of Official Duties was
    Excessive or Inappropriate
  • Offender’s Conduct Was Not Direct
    Cause of Death (Type 2)
  • Serious Bodily Injuries(Type1)
  • Offense Committed Against
    Numerous Public Officials
  • Significant Obstruction of Official
    Duties
  • Repeated Crimes That Does Not
    Constitute as Concurrent Crimes
  • Instigating the Subordinate Person
    to Commit the Offense
Actor/etc.
  • Those with Hearing and Visual
    Impairments
  • Those with Mental Incapacity
    (Cases Where the Offender Cannot
    be Held Liable)
  • Voluntary Surrender to Investigative
    Agencies
  • Offender Expresses Remorse and
    the Victim Opposes Punishment
    (This Includes Genuine Efforts to
    Reverse Harm)
  • RRepeated Offenses of the Same
    Type under the Criminal Act
General
Sentencing
Determinant
Conduct
  • Passive Participation
  • Cases Where the Base Offense
    (Obstruction of Official Duties) was
    Premeditated
Actor/etc.
  • Rescuing or Transferring the Victim
    to the Hospital After Committing
    the Offense
  • Those with Mental Incapacity
    (These Are Cases Where the
    Offender Can be Held Liable)
  • No Prior Criminal History
  • Repeated Offenses of Different
    Type under the Criminal Act,
    Criminal History of Imprisonment by
    the Same Type of Offenses that
    Does not Constitute Repeated
    Offense under the Criminal Act
    (This Applies When the Criminal
    History is Within Ten Years After
    Completion of Sentence)
  1. 1. OBSTRUCTION OF OFFICIAL DUTIES
    • A. TYPE 1 OBSTRUCTION OF OFFICIAL DUTIES
    • This means offenses with the following elements of offense as prescribed in the applicable law (Applies to all offenses).
공무집행방해 양형기준
Elements of Offense Applicable Law
Use of force or threat against a public official engaged in
performing of public duties
Criminal Act, Article 136, paragraph 1
Use of force or threat against a public official for the purposes of
coercing or obstructing certain acts; otherwise, to force
resignation from particular position
Criminal Act, Article 136, paragraph 2
Commission of aforementioned crimes by demonstrating the
organization’s power or leveraging through the power of
multitudes otherwise, offense committed while carrying a
dangerous object
Criminal Act, Article 144, paragraph 1
  • B. TYPE 2 OBSTRUCTION OF OFFICIAL DUTIES BY DECEPTIVE MEANS
공무집행방해 양형기준
Elements of Offense Applicable Law
Obstruction of the official duties by use of deceptive schemes Criminal Act, Article 137
  1. 2. INVALIDATION OR DESTRUCTION OF OBJECTS USED FOR PUBLIC PURPOSES
    • A. TYPE 1 INVALIDATION OF OBJECTS USED FOR PUBLIC PURPOSES
공무집행방해 양형기준
Elements of Offense Applicable Law
Damaging, concealing or other similar conducts performed to
documents or goods; electronic records that includes
electromagnetic records and other similar items used in public
offices.
Criminal Act, Article 141, paragraph 1
Commission of aforementioned crimes by demonstrating the
organization’s power or leveraging through the power of
multitudes; otherwise, offense committed while carrying a
dangerous object
Criminal Act, Article 144, paragraph 1
  • B. TYPE 2 DESTRUCTION OF OBJECTS USED FOR PUBLIC PURPOSES
공무집행방해 양형기준
Elements of Offense Applicable Law
Destroying structures, ships, trains, or airplanes used in public
office
Criminal Act, Article 141, paragraph 2
Commission of aforementioned crimes by demonstrating the
organization’s power or leveraging through the power of
multitudes; otherwise, offense committed while carrying a
dangerous object
Criminal Act, Article 144, paragraph 1
  1. 3. PARTICULAR OBSTRUCTION OF OFFICIAL DUTIES RESULTING IN BODILY INJURIES OR DEATH
    • A. TYPE 1 EXTRAORDINARY OBSTRUCTION OF OFFICIAL DUTIES ESULTING IN BODILY INJURIES
공무집행방해 양형기준
Elements of Offense Applicable Law
Offenders of extraordinary obstruction of official duties,
extraordinary cases of invalidation or destruction of objects used
for public purposes causes bodily injuries to a public official
Criminal Act, Article 144, paragraph 2
  • B. TYPE 2 EXTRAORDINARY OBSTRUCTION OF OFFICIAL DUTIES RESULTING IN DEATH
공무집행방해 양형기준
Elements of Offense Applicable Law
Offenders of extraordinary obstruction of official duties,
extraordinary cases of invalidation or destruction of objects used
for public purposes causes death to a public official
Criminal Act, Article 144, paragraph 2
  1. 1. EXTENT OF PERFORMING THE OFFICIAL DUTIES WAS EXCESSIVE OR INAPPROPRIATE
    • This means cases where the legal authority and proper means for performing the official duties was present; but, unnecessarily excessive methods for performing such duties resulted; or the public official’s use of words or attitude provoked the offender.
  2. 2. SERIOUS BODILY INJURIES
    • This means cases where the recovery from the inflicted injury requires more than 4 to 5 weeks of medical care in general, including cases with after-effects causing impairment, severe disability resulting from the offense, injuries inflicted to vulnerable body parts or further anticipated bodily injuries.
  3. 3. SIGNIFICANT OBSTRUCTION OF OFFICIAL DUTIES
    • This means that the obstruction of official duties in regards to the extent and duration causing inconvenience or interruptions to official duties is significant.
  4. 4. REPEATED CRIMES THAT DOES NOT CONSTITUTE AS CONCURRENT CRIMES
    • This means the offender has three or more incidents of imposing of fines or more severe punishments regarding same type of offense; this is calculated within three years from the time of the commission of the offense.
  5. 5. PASSIVE PARTICIPATION
    • This means cases where the nature of participation in the commission of the offense was passive or the offender had a limited role.
    • However, this is not applicable in cases where the offender had an active role in the commission of the offense by causing another person to commit the crime.
  6. 6. PREMEDITATED CRIME
    • This means cases with one or more of the following factors:
      • Advance preparation and possession of the crime weapon;
      • Planned conspiracy;
      • Inducement of victim;
      • Preparation of destruction of evidence;
      • Prior planning of a flight plan; or
      • Other cases with comparable factors.
  7. 7. VALUE OF THE INVALIDATED OR DESTROYED OBJECT IS INSIGNIFICANT
    • This means cases where the social and economic value of the invalidated or destructed object is insignificant so that the cost for repair or reversing the harm is relatively small.
  8. 8. OFFENDER’S CONDUCT WAS NOT DIRECT CAUSE OF DEATH
    • This means cases where intervening causes unforeseen by the offender existed at the time of the commission of the offense and, therefore, the offender cannot be held liable for the direct cause of the death.
  1. 1. DETERMINING APPROPRIATE SENTENCING RANGE
    • In determining the appropriate sentencing range, the judge must only consider the special sentencing determinants.
    • However, in cases involving more than two special sentencing determinant, the applicable sentencing range is adjusted after assessing the factors as set forth below:
      1. ① The same number of conduct factor shall be considered with greater significancethan the actor/etc. factor. However, this shall be assessed equally to the victim orthe family member of the deceased victim’s objection to the punishment.
      2. ② Each factor within the relevant categories of conduct or actor/etc. factors should betreated as equal.
      3. ③ If the applicable sentencing range is unable to be determined by theaforementioned principles ①, ②, the judge is to decide the applicable sentencingrange through a comprehensive comparison and assessment based on theprinciples set forth in ①, ②.
    • It is recommended that when the assessment reveals greater aggravating factors to select the aggravated zone, the mitigating factors is greater to select the mitigating zone, and the same number of aggravating factors and mitigating factors to select the standard zone as a sentencing range.
  2. 2. DETERMINING THE APPLICABLE SENTENCE
    • The judge should select the proper point within the sentencing range as assessed in accordance with the above principles, along with the special sentencing determinant and general sentencing determinant taken together.
  1. 1. SPECIAL ADJUSTMENTS TO THE SENTENCING RANGE
      1. ① In cases where the aggravating factor is selected and the assessment of the special sentencing determinant reveals only two or more special aggravating factors or the special sentencing determinant outnumbers the special mitigating determinant by two or more, then the sentencing range should be increased up to 1/2 from the maximum level.
      2. ② For cases where the mitigating factor is selected as a result of assessment of the special sentencing determinant, and there are two or more special mitigating determinant or the special mitigating determinant outnumbers the special aggravating determinant by two or more, the sentencing range should be decreased up to 1/2 from the minimum level.
  2. 2. RELATION BETWEEN THE RECOMMENDED SENTENCING RANGE GUIDELINES AND APPLICABLE SENTENCING RANGE BY LAW
    • When the sentencing range under this guideline conflicts with the range drawn in accordance with the aggravation and mitigation of applicable law, the sentencing range prescribed by applicable law governs.
  3. 3. APPLICATION OF STATUTORY MITIGATING FACTORS AS DISCRETIONARY
    • When the judge declines to apply the optional mitigation factor under the applicable law as listed in the sentencing table of this guideline, this shall be considered as the discretion for mitigation.
  1. 1. APPLICABLE SCOPE
    • This part on multi-count convictions applies to concurrent crimes prescribed in the first part of Article 37 of the Criminal Act as set forth in this sentencing guideline. However, in cases of this article’s concurrent crimes where offenses that fall within and outside of the sentencing guidelines are involved, the minimum level should be the minimum of the sentencing range of the offense that is set forth in this sentencing guideline.
  2. 2. DETERMINING BASE OFFENSE
    • The “base offense” means the most severe offense that results after the selection of penalty and statutory aggravation and mitigation as prescribed in Criminal Act, Article 50. However, in cases where the maximum sentencing range is lower than that of the maximum sentencing range of the other counts as provided in this guideline, then such other count becomes the base offense.
  3. 3. CALCULATING SENTENCING RANGE
    • For purposes of calculating sentencing range for multi-count conviction cases, the judge shall apply the following unless the offenses are deemed as a single offense under the sentencing guideline.
      1. ① In setting sentencing range for an offender convicted of two counts, the sentencing range should be the total sum of the maximum sentencing range of the base offense and the 1/2 of the maximum sentencing range of the second count.
      2. ② In setting sentencing range for an offender convicted of three or more counts, the sentencing range should be the total sum of the following: (1) maximum sentencing range of the base offense, (2) 1/2 of the maximum sentencing range of the count with the highest sentencing range, and (3) 1/3 of the maximum sentencing range of the remaining count with the second highest sentencing range.
      3. ③ For cases where the minimum sentencing range of the other count is higher than that of the base offense, the minimum sentencing range resulting from the multi-count offense should be the minimum sentencing range of the other count.

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