Although the Defendant was issued a designated number of times due to the failure to pay a fine, the Defendant was trying to flee on the first floor of the police officer and apartment house while accompanying the Defendant, which constitutes a case requiring urgency as stipulated in Article 85 of the Criminal Procedure Act, and thus, it is possible to execute the sentence against the Defendant without presenting the warrant of execution of punishment. Even if it does not require urgency, the Defendant committed an assault, etc. against the police officer during the lawful voluntary movement of the police officer against the Defendant, and thus, the lower judgment that acquitted the Defendant on the ground that it constitutes obstruction of performance of official duties

2. Determination:

Comprehensively taking account of the evidence duly adopted and examined by the court below, ① Police Officers, Nonindicted 1, and Nonindicted 2, who belong to the Ulsannam Police Station, tried to find out the whereabouts of the defendant's residence in Ulsan-dong (hereinafter omitted) without a warrant of execution of punishment for the purpose of attracting a fine to the defendant, and ② At the time, Nonindicted 1, while leaving Nonindicted 2 in the patrol vehicle, notified the defendant's children to the same apartment, and requested him to accompany because he did not pay a fine to the defendant who finished the shower, ③ the defendant failed to go to go to the first floor of the above apartment; ③ the defendant refused to go to the second floor of the Seoul Southern Police Station; ④ The defendant tried to arrest the defendant, who was in order to prevent the defendant from having arrived at the place of contact with the defendant; ⑤ The defendant refused to go to go to the second floor of the above apartment; and ④ The defendant's refusal to go to contact the defendant with him; and ④ the defendant's refusal to go to contact with him; and ⑤ the defendant's refusal to go to contact with him.

On the other hand, the provisions of the Criminal Procedure Act concerning detention shall apply mutatis mutandis to the procedure for the execution of punishment, and if necessary for the execution of punishment, a prosecutor, who is the executive organ of punishment, may issue a writ of execution and arrest a person who has been sentenced to punishment. Thus, for the execution of punishment, judicial police officers should present a warrant of execution issued by a prosecutor to the person who is subject to arrest for a certain person like the defendant. As such, the police officers, without holding a warrant of execution, visited the defendant's residence in order to arrest the defendant without having a warrant of execution, and tried to arrest the defendant in the form of voluntary behavior in order to arrest the defendant, who tried to leave another place while refusing voluntary behavior on the first floor of the apartment of this case. Accordingly, the defendant's crime is an act to escape from the present unjust infringement on the body of the defendant due to such unlawful arrest, and it is an act lacking in illegality in light of the situation, purpose and means of such act and the intent of the actor, etc.

In addition, the case where it is urgent to arrest and detain a person who has been sentenced without presenting a warrant of execution of punishment is limited to the case where the person who has been sentenced was sentenced under the conditions that there is no time to possess the warrant of execution of punishment at the time. As in this case, the police officer visited the residence of the defendant for the execution of punishment and requested voluntary behavior, but the defendant refused the police officer's voluntary request of action and attempted to leave the place to do so, and the above conclusion does not change even if the defendant was appointed as a person who has failed to pay a fine.

3. Conclusion

Therefore, the judgment of the court below with the same conclusion is just, and the prosecutor's appeal is without merit, and it is so dismissed. It is so decided as per Disposition.

Judges Park Gyeong-gi (Presiding Judge)