A. misunderstanding of facts (with regard to obstruction of performance of official duties), a police officer, etc. who was called to the site at the time of the instant case was not dispatched from others after receiving a report of a criminal act, but to find a defendant's incidental to the defendant who did not enter the hotel during Jeju-do tour, and the police officer reported to the 112, so that the defendant was called to the said site by the police officer, and the police officer did not receive notice of the principle of Disturbance at the time of arrest. Thus, arresting the defendant as a flagrant offender is not legitimate

Furthermore, the defendant was only passive resistance against arrest and did not intentionally assault the police officer.

B. The lower court’s sentence of unreasonable sentencing (fine 5 million won) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. Legal doctrine provides that any person may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act). In order to arrest a flagrant offender, there must be concerns about the necessity of arrest, namely, the necessity of escape or destruction of evidence, and the arrest of a flagrant offender who fails to meet such requirements constitutes an illegal arrest without a warrant, which is not based on legal basis.

Here, whether a person satisfies the requirements for the arrest of flagrant offenders should be determined based on the situation at the time of arrest. In so doing, there is considerable discretion in the judgment of the investigative body, such as prosecutor or senior judicial police officer. However, if a prosecutor, senior judicial police officer, etc.’s judgment on whether the requirements are met is considerably unreasonable in light of the empirical rule even when considering the situation at

(see Supreme Court Decision 201Do3682, May 26, 2011). Meanwhile, according to Articles 213-2 and 200-5 of the Criminal Procedure Act, in a case where a judicial police officer arrests a flagrant offender, the crime is always committed.