[2] Whether compelling a summary trial suspect to attract him/her to a police station protection room constitutes an illegal confinement (affirmative)

[2] Without following the requirements for detention or detention under the Criminal Procedure Act or the Act on the Performance of Duties by Police Officers, a summary trial suspect does not have any legal basis to detain and detain the suspect, and even if there were such practices or guidelines in the police service, it cannot be a ground to enforce the restraint of the personal body, which is prohibited in principle. Thus, an act of forcing the suspect to detain the suspect in the front room of the police station for 1020 minutes in the first place, namely, the illegal confinement under Article 124(1) of the Criminal Act, constitutes a crime of illegal confinement under Article 4-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, if the suspect was injured in the course of smugglinging the suspect in the protective room, then such act constitutes a crime of Article 4-2(1) of the Act on the Aggravated Punishment, etc.

The act of confinement in the crime of confinement refers to an act of restricting personal liberty by preventing a person from leaving a certain place. The method includes not only physical and tangible obstacles but also psychological and intangible obstacles (see Supreme Court Order 91Mo5, Dec. 30, 1991). Thus, as a waiting room in a police station, the place is a waiting room in the police station where the general public, visitors, and police officers frequently enter and leave the police station, and there is a tangible or intangible suppression that limits the freedom of human body so that there is no physical freedom from leaving the police station. If there is a tangible or intangible suppression that limits the freedom of human body from leaving the police station.

According to the reasoning of the court below and the court of first instance, the court below determined that the defendant applied Article 4-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 124(1) of the Criminal Procedure Act to the head of the wife, on the ground that there was evidence of a crime as to the fact that the defendant, who refused the victim's legitimate request for returning home and forced the victim to the police station protection room until the victim's new illness is delivered, and until the court of first instance is opened a summary trial court, for 1020 minutes in the waiting room, the victim was placed in the front suspect waiting room, i.e., e., for 1020 minutes. In order to put the victim into the above protection room, the court below erred in the misapprehension of legal principles as to Article 124(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 124(1) of the Criminal Procedure Act and Article 27(1) of the Act.

In addition, even if a prosecutor re-prosecutions a disposition of suspension of indictment for a certain crime and then prosecuted it, the validity of the prosecution does not affect (see Supreme Court Decision 83Do2686, 83Do456, Dec. 27, 1983).

2. The defendant's ground of appeal No. 1 and No. 2 of the state appointed defense counsel's ground of appeal are examined together.

The court below rejected the defendant's assertion of a justifiable act on the ground that the reasons that the defendant is a summary trial suspect are not subject to the conditions of confinement or custody under the Criminal Procedure Act or the Act on the Performance of Duties by Police Officers, and there are no legal grounds for confinement or custody of the suspect, and even if there were such practices or guidelines for police's duties, this cannot be the grounds for the arrest of the person who is prohibited in principle. In light of the records, the judgment of the court below is justified, and there are no errors in the misapprehension of legal principles as to the justifiable act under Article 20 of the Criminal Act, such as the

3. The defendant's ground of appeal No. 6 and No. 2 of the state appointed defense counsel's ground of appeal are examined together (the assertion about the possibility of mistake or expectation of law).

Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable reason to believe that the misunderstanding does not constitute a crime. It does not mean a simple site of law, but it means that an act of misunderstanding is generally a crime, but it is recognized that it does not constitute a crime under Acts and subordinate statutes in his own special circumstances, and there is a justifiable reason to mislead misunderstanding (see Supreme Court Decision 94Do2148 delivered on December 22, 195).

With respect to the assertion that there is no possibility of legal mistake or expectation of the defendant, in light of the circumstances of the crime in this case and the defendant's service experience in police officers, it cannot be deemed that the defendant's act of confinement and detention as stated in the judgment of the court below was erroneous as not a crime under the law. Moreover, as long as the defendant did not have an obligation to comply with such illegal order on the ground that he received an order from an employee at the police station protection room for the protection of the police station, it is difficult to find that there is a justifiable reason or that there was no possibility that the defendant would avoid the protection room of the victim. In light of the records and the legal principles as seen earlier, such determination by the court below is reasonable, and there is no error of law by misapprehending the legal principles as to the mistake or expectation of law as stipulated in

4. We examine the three grounds of appeal by a state appointed defense counsel.

In the same case as this case of which the sentence of imprisonment has been postponed, the argument that there is a ground to acknowledge that the amount of punishment is unreasonable cannot be a legitimate ground for appeal.

5. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Park Jong-ho (Presiding Justice)