CONTENTS
- 1. The Client at Risk of a Custodial Sentence for Obstruction of Official Duties
- - The Original Judgment in the Client's Case
- - The Prosecutor's Argument in the Client's Case
- 2. Explanation of a Custodial Sentence for Obstruction of Official Duties
- - Sentencing Guidelines for Obstruction of Official Duties
- - Mitigating Factors for Obstruction of Official Duties
- 3. Strategy for Responding to the Custodial Sentence for Obstruction of Official Duties
- - Emphasizing Active Cooperation with the Investigative Agency
- - Emphasizing That the Monetary Deposit Had Been Completed
- - Emphasizing That No Objection Was Raised Against the Original Judgment
- 4. Result of the Response to the Custodial Sentence for Obstruction of Official Duties
1. The Client at Risk of a Custodial Sentence for Obstruction of Official Duties
This is the account of a client who requested an urgent response upon facing the risk of an actual custodial sentence for obstruction of official duties.
The client says that on the day of the incident the client drank more than usual and had a dispute with the spouse.
While this was happening, a police officer was dispatched following a report from the downstairs neighbor, and the client strongly refused the on-site investigation.
In response, the police officer entered the client's residence, advising that an administrative fine could be imposed for refusing an on-site investigation.
As the police officer approached the children, the client became afraid that the children might be taken away, and so shouted not to take the children and used abusive language.
In addition, the client rushed at one of the police officers and assaulted the officer by pushing with both hands.
The client was therefore indicted for obstruction of official duties on the ground of having obstructed the lawful performance of the police officer's duties.
The Original Judgment in the Client's Case
After the client was indicted for obstruction of official duties, the original court is said to have imposed a minor fine on the client.
However, the prosecutor appealed against the original judgment, arguing that an actual custodial sentence for obstruction of official duties should be imposed on the client.
The Prosecutor's Argument in the Client's Case
The reason the prosecutor filed an appeal in the client’s case was that the client had cursed at and pushed a police officer who responded to the client’s residence, committing assault, and that the nature of the offense was therefore poor.
The prosecutor filed this appeal on the ground of an unjust sentence, asserting that the client needed to be severely punished.
2. Explanation of a Custodial Sentence for Obstruction of Official Duties
🔗Obstruction of official duties is a crime prescribed in Article 136 of the Criminal Act, and refers to the act of obstructing, by assault or intimidation, a public official's lawful performance of duties.
Here, a public official includes not only a person who handles the affairs of the State or a local government, but also a person who performs public duties entrusted under statute.
The performance of duties must be lawful, and where the performance of duties is unlawful or exceeds authority, the crime of obstruction of official duties is not established.
The core elements of the crime of obstruction of official duties are as follows.
For example, this applies where a police officer arrests a person caught in the act of committing a crime or a tax official conducts a tax investigation.
2. The duties must be lawful
The public official's conduct must be based on statute and procedurally legitimate.
3. The means of obstruction must be assault or intimidation
Assault refers to the exercise of physical force against the other party's body, and intimidation refers to the communication of a harm capable of arousing fear.
An actual sentence for obstruction of official duties may be imposed up to a maximum of 5 years, and the sentencing varies depending on the degree of the assault or intimidation, the circumstances of the harm, the background of the offense, and the like.
Sentencing Guidelines for Obstruction of Official Duties
The Sentencing Commission recommends the following sentencing guidelines for the crime of obstruction of official duties.
Mitigated | Basic | Aggravated |
~ 8 months | 6 months ~ 1 year 6 months | 1 year ~ 4 years |
Mitigating Factors for Obstruction of Official Duties
The following circumstances may serve as mitigating factors for the crime of obstruction of official duties, creating room to avoid an actual sentence for obstruction of official duties.
2. Where the motive for the offense is worthy of consideration
3. Where the offender voluntarily surrenders the offense
4. Where the offender participated passively in the offense
5. Where the offense was committed in a state of mental and physical weakness
6. Where there is no prior record of criminal punishment
7. Where the victim does not wish for punishment
8. Where substantial recovery of the harm, including a deposit, has been completed
3. Strategy for Responding to the Custodial Sentence for Obstruction of Official Duties
This firm formulated the following strategy in order to respond to the actual custodial sentence for obstruction of official duties.
Emphasizing Active Cooperation with the Investigative Agency
The criminal law specialist attorney emphasized that the client actively cooperated with the investigative agency's investigation.
The client acknowledged the offense in this case, sincerely reflects on it, and has repented of the wrongdoing from the time the offense was discovered up to now.
In addition, the client shows a firm will toward preventing reoffending on their own so that such a situation does not occur again.
The criminal law specialist attorney provided the client with a guideline for a letter of apology, submitted the letter of apology written by the client, and requested that the court consider that the client is sincerely reflecting.
Emphasizing That the Monetary Deposit Had Been Completed
The criminal attorney emphasized that the client had made a monetary deposit for the injured police officer.
The client continued to do his utmost to reach a settlement with the injured police officer but ultimately could not reach one.
However, in order to convey his remorse in some way to the injured police officer, who would have suffered mental and physical harm, the client completed the monetary deposit.
The criminal attorney requested that the court take into account that the client had made the deposit as a second-best option.
Emphasizing That No Objection Was Raised Against the Original Judgment
The criminal law specialist attorney emphasized that the client repented of the client's wrongdoing and did not raise any objection to the original judgment.
Having received a fine at the original trial and then facing punishment as well, the client blamed himself and sought to use this as a foundation for never reoffending.
The criminal law specialist attorney emphasized that the client did not object to the original judgment and was resolved not to commit any unlawful act, and requested that, so that the client could live as a member of society together with his still-young children, the client at least be spared an actual custodial sentence for obstruction of official duties.
4. Result of the Response to the Custodial Sentence for Obstruction of Official Duties
This firm’s criminal attorney assisted with the case using the above response strategy and requested that the prosecutor’s appeal be dismissed on the ground that the appeal, claiming the sentence of the first instance was too light, was without merit.
As a result of the criminal attorney’s response, the court dismissed the prosecutor’s appeal and issued a judgment maintaining the minor fine imposed by the first instance.
The client had been at risk of receiving an actual sentence for obstruction of official duties due to the prosecutor’s appeal, but because of the criminal attorney’s prompt response, it was possible to avoid an actual sentence.
Obstruction of official duties is a crime for which punishment is prescribed in order to maintain social order and protect the official authority of public officials, and a heavy level of punishment may be imposed.
In addition, other crimes such as assault, intimidation, and infliction of bodily injury may also apply and be punished together, so caution is needed.
If, like the client in this case, you are facing the risk of an actual sentence for obstruction of official duties, please proceed with a 🔗legal consultation reservation, where direct consultation with an attorney is available.
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