[2] In a case where a person who expresses his/her intent to become a defense counsel is objectively likely to become a defense counsel, whether it may be restricted to prevent the physically detained defendant or the suspect from meeting (negative)

[3] The limitation of the exercise of the right to interview and communicate by a defense counsel or a person who intends to be a defense counsel and the determination that the right to interview and communicate is not permissible

[4] Whether the crime of abusing authority and the crime of abusing authority and the crime of abusing authority and obstructing another’s exercise of rights are established in a case where a judicial police officer, who performs duties relating to the restraint of human beings, judged that it is unreasonable in light of the empirical rule by taking into account the situation at the time of arrest, does not meet the requirements for arrest, even though he/she was aware that it goes beyond the scope of his/her discretion, and thereby

[2] Article 34 of the Criminal Procedure Act provides that "a person who intends to become a defense counsel or a defense counsel may meet the defendant or suspect detained by a physical restraint, give or receive documents or articles, and have a doctor give or receive medical treatment." Thus, even though it is objectively acknowledged that a person who intends to become a defense counsel is likely to become a defense counsel, it shall not be restricted from meeting the defendant or suspect detained by deeming that such person is not a defense counsel or a person who intends to become a defense counsel."

[3] The right to meet and communicate with a defense counsel or a person who intends to be a defense counsel shall be exercised within the scope that does not infringe upon the original purpose of the physical restraint system. As such, the right to meet and communicate with a defense counsel or a person who intends to be a defense counsel shall not be permitted since it does not fall under the exercise of the right to meet and communicate with a criminal defendant or a criminal suspect beyond the bounds that the right to meet and communicate with a criminal suspect is practically guaranteed in light of the specific time and place circumstances. In determining that the right to meet and communicate deviates from such limitation and thus is not permissible, caution shall be exercised so as

[4] A public prosecutor, judicial police officer, etc., who is required to meet the requirements for the arrest of a flagrant offender, may have a considerable discretion, but if a public prosecutor or judicial police officer, etc.’s judgment as to whether the requirements are met is considerably unreasonable in light of the empirical rule, based on the circumstance at the time of the arrest, the arrest is unlawful. Moreover, the criminal intent includes not only a conclusive intention but also dolusent intention, so-called “the intention to recognize the occurrence of a result.” As such, in a case where a judicial police officer, who performs the duties of the arrest of a person, was sufficiently aware that the requirements for the arrest are not satisfied, even though he/she was aware of the fact that he/she exceeded the scope of his/her discretion, and thereby obstructing the exercise of rights by arresting a person with the same result, the crime of abuse of authority and the crime of

1. As to the ground of appeal on the invalidation of the indictment procedure

Even if the court rendered a decision of prosecution under Article 262(2)2 of the Criminal Procedure Act without notifying the suspect of the fact within the period prescribed by Article 262(1) of the Criminal Procedure Act from the date on which it received an application for adjudication even though it had received the application for adjudication, it may not contest the above mistake in the case on the merits, barring any other special circumstances after the prosecution was initiated and the procedure for the principal case was commenced (see, e.g., Supreme Court Decisions 2009Do224, Nov. 11, 2010; 2012Do1741, Apr. 10, 2014).

For the reasons indicated in its holding, the lower court determined that the instant indictment does not constitute a case where the instant indictment was null and void as it violated the statutory provisions, even if the court, which received the application for adjudication, did not notify the Defendant of such fact and rendered the instant indictment.

The above determination by the court below is just on the basis of the legal principles as seen earlier, and it did not err by misapprehending the legal principles as to the validity of indictment.

2. As to the grounds of appeal on the legality of the arrest procedure against non-indicted 1 of the union members

The lower court determined that: (a) the Defendant’s act of not immediately compelling administrative enforcement based on Article 6(1) of the Act on the Performance of Duties by Police Officers, but actually arresting the Defendant, based on the following reasons: (b) the Defendant raised an objection to Nonindicted 1, who was surrounded by a large number of riot police units at the time; and (c) the Defendant did not oppose Nonindicted 1 while trying to go again or using violence to the extent that the physical conflict between the members of the ○○ Automobile Branch and the members of the ○○ Automobile Branch had not been caused for 30 to 40 minutes; and (d) the Defendant was unable to move for 10 minutes in the same way; and (c) the Defendant failed to comply with the procedure for arresting Nonindicted 1, who was in fact arrested the victim; and (d) the Defendant did not properly comply with the procedure for arresting the victim, etc., on the ground that he did not immediately arrest the victim.

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine regarding the requirements and procedures for administrative enforcement or arrest, or by misapprehending the legal doctrine regarding the requirements and procedures for administrative enforcement or arrest, or by omitting judgment. The allegation in the grounds of appeal disputing this cannot be accepted.

3. As to the ground of appeal on whether the victim's right to interview and communicate is recognized

Article 34 of the Criminal Procedure Act provides, “A person who intends to become a defense counsel or a defense counsel may meet with the defendant or suspect detained by his/her body, give or receive documents or articles, and have a doctor give or receive medical treatment.” Thus, even though a person who expresses his/her intention to become a defense counsel is objectively likely to become a defense counsel, it shall not be restricted from meeting with the defendant or suspect detained by deeming that the person who expresses his/her intention to become a defense counsel is not a defense counsel or a defense counsel.”

The court below held that on June 22, 2009, the defendant notified the non-indicted 1 of the grounds for arrest and the right to appoint counsel, and that on June 22, 2009, the defendant requested the non-indicted 1 to meet with the victim's counsel, the police did not confirm whether the victim intended to appoint a defense counsel or not, and that the defendant did not request the victim to meet with the non-indicted 1 as a defense counsel because the victim did not have the right to meet with the non-indicted 1 as a defense counsel, and the police did not directly request the defendant to meet with the non-indicted 1 as a defense counsel because the victim did not have the right to meet with the non-indicted 2 and the non-indicted 6 members.

Examining the above legal principles in light of the above, the above judgment of the court below is acceptable, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the right to interview and communicate.

4. As to the ground of appeal as to whether the exercise of the right to meet and communicate deviates from the limit

The right to meet and communicate with a defense counsel or a person who intends to become a defense counsel shall be exercised within the scope that does not infringe upon the original purpose of the physical restraint system. Thus, in order for a defense counsel or a person who intends to have a defense counsel meet a defendant or a suspect beyond the bounds that can be guaranteed in reality in light of the specific time and location circumstances, it shall not be permitted as it does not constitute the exercise of the right to interview and communicate. Provided, That in determining that the right to interview and communicate deviates from such limitation, it shall be careful so that the essential content of the right to receive assistance of a defense counsel, which is the fundamental right of the physically detained person, may not be infringed (see Supreme Court Order 2006Mo657, Jan. 31,

The lower court determined that: (a) the Defendant’s acceptance of the victim’s request for interview with Nonindicted Party 1 at the arrest site cannot be deemed to contravene the original purpose of the arrest system, on the grounds that there was no objection against the Defendant even though the victim did not raise any objection; (b) as soon as possible, there was a need to accurately grasp the content of the case and take countermeasures; and (c) on the other hand, in light of the field circumstances at the time when Nonindicted Party 1 was arrested, there was no risk of physical conflict between the union and the union members; and (d) there was no reason to cause the victim to escape or destroy evidence at the scene of the crime; and (c) the Defendant’s acceptance of the victim’s request for interview with Nonindicted Party 1 at the arrest site cannot be deemed to contravene the original purpose of the arrest system; and (c) if there were circumstances to deem that the arrest by the investigative agency did not comply with the procedure as stipulated in the Criminal Procedure Act, the Defendant’s defense counsel for the arrested suspect may point out its illegality during a series of arrest and take action against the Defendant’s defense counsel’s use of meeting limit.

Examining the above legal principles in light of the above, the above determination by the court below is acceptable, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the limitation of meeting and communication rights and deviation from the defense counsel or a

5. As to the ground of appeal on the legitimacy of arrest of the victim

The crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established only where the performance of official duties by a public official is legitimate. Here, legitimate performance of official duties refers to not only the abstract authority of a public official, but also the case that satisfies the legal requirements and methods for specific performance of duties. If a police officer arrested a flagrant offender due to a real force even though the police officer failed to meet the requirements for arrest of a flagrant offender, it cannot be deemed a legitimate performance of official duties (see Supreme Court Decision 2011Do3682, May 26, 2011, etc.).

The lower court deemed that (i) the victim was an attorney-at-law who was arrested and asked the victim to have an interview with Nonindicted Party 1 on several occasions; (ii) the victim did not appear to have any response to the request; (iii) the riot police officers went to a joint-time with Nonindicted Party 1’s interview with Nonindicted Party 1; (iii) the victim obstructed the victim from having a meeting with Nonindicted Party 1, who was arrested in the process of continuing to request the interview with Nonindicted Party 1; and (iv) the victim started fighting with his body while the victim was pushed about the victim; (iii) the victim was arrested as a flagrant offender only two and three minutes from the time of receiving the request for interview with the victim; and (iii) the Defendant was unable to accept the request for interview with the victim at the scene of the arrest; and (iv) the Defendant did not appear to have interfere with the victim’s lawful exercise of police duties, such as explaining the situation of the victim at the scene and providing guidance to the victim at another place, including a police station, and determined that the Defendant did not have been charged with the victim’s lawful exercise of police duties.

In light of the above legal principles, the court below’s above determination that the defendant’s arrest of a flagrant offender against the victim cannot be deemed a legitimate performance of official duties is acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the establishment of obstruction of performance of official duties

6. As to the ground of appeal on whether abuse of authority was intentional or not

A public prosecutor, judicial police officer, etc. may have a reasonable discretion in determining whether a person satisfies the requirements for the arrest of a flagrant offender, but if a prosecutor, judicial police officer, etc.’s or a judgment on whether the requirements are met is considerably unreasonable in light of the empirical rule, considering the situation at the time of the arrest, the arrest should be deemed unlawful. Moreover, the criminal intent includes not only a conclusive intention but also dolusent intention, so-called “the intention to recognize the occurrence of a result” as well as the intention to recognize the occurrence of a result. Thus, even though a judicial police officer who performs duties concerning the arrest of a flagrant offender was sufficiently aware that the requirements for the arrest were not satisfied if he/she determined without considerable rationality in light of the empirical rule at the time of the arrest, by taking into account the situation at the time of the arrest, and thereby obstructing the exercise of such rights, the crime of

The lower court determined that the lower court rejected the Defendant’s allegation that: (a) the Defendant was lawful at the time of arresting Nonindicted 1, on the grounds that: (b) the Defendant was working as a police officer performing duties concerning the restraint of personal liberty for not less than twenty (20) years; (c) the Defendant was aware that Nonindicted 1 was unaware of the procedures for arresting a flagrant offender under the Criminal Procedure Act; (d) the Defendant was sufficiently aware that Nonindicted 1 was unable to comply with the requirements for arresting a flagrant offender under the said Act; and (e) the Defendant was aware that the victim, who was an attorney, was asked to meet the requirements for arresting a flagrant offender under the said Act; and (e) the Defendant’s arrest of the attorney requesting meeting, as a flagrant offender of the obstruction of performance of official duties, was unlikely to report other members’ arrest to the upper part; and (e) the Defendant was arrested as a flagrant offender of the obstruction of official duties without following such procedures as reporting another member’s arrest and waiting to follow instructions; and (e) the Defendant did not seem to have known that the Defendant had been aware of the need to arrest a flagrant offender.

Examining the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the intent and expectation of abuse of authority, grounds for retrial, etc., contrary to what is alleged in the grounds of appeal.

7. Conclusion

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

Justices Lee Ki-taik (Presiding Justice)