1. As to the obstruction of performance of official duties by police officers Nonindicted 1

A. As to the omission of judgment

Of the facts charged in the instant case, the lower court acquitted the Defendant on the ground that the charge of obstruction of performance of official duties against Nonindicted Party 1 (hereinafter “this part of the facts charged”), based on the evidence duly admitted, was acknowledged that the Defendant gave up Nonindicted Party 1’s right to walk one time, but the Defendant’s act was to have a dispute with the witness of the traffic accident, and thus, to oppose the unlawful compulsory disposition by the police officers who avoided the Defendant without any legal basis, and thus, the crime of obstruction of performance of official duties, which requires legitimate execution, is not established.

However, according to the records, this part of the facts charged is an act of assaulting Nonindicted 1 by the defendant against the police officer who judged that the court below's illegal compulsory disposition was a compulsory disposition. In addition to the defendant's act of aiding and abetting Nonindicted 1's mouth one time, the defendant also stated the defendant's act of taking two chests of Nonindicted 1' hair in his head before the police officer's above measures were taken. In the trial procedure, such as the examination of witness, the defendant's act of taking two chests of Nonindicted 1' hair in his head, and the fact that there was a defense against the defendant and the prosecutor.

사정이 이러하다면, 원심으로서는 이 부분 공소사실 중 피고인이 머리로 경사 공소외 1의 가슴을 2회 들이받은 행위 부분이 피고인이 발로 경사 공소외 1의 정강이를 걷어찼다는 공소사실에 이르게 된 경위를 단순히 부연·설명하기 위하여 기재된 것에 불과한 것인지, 아니면 이 역시 피고인이 발로 경사 공소외 1의 정강이를 걷어찼다는 부분과 별도로 이 부분 공소사실의 범죄행위를 구성하는 것으로 기재된 것인지 명확히 하고, 그럼에도 이 부분 공소사실 전체가 무죄로 판단된다면, 적법하게 채택된 증거들에 의해서는 위 행위가 인정되지 않는다는 것인지, 위 행위가 인정되지만 성질상 공무원의 직무집행을 방해할 만한 정도의 폭행에는 해당되지 않는다는 것인지, 아니면 위법한 공무집행에 대항한 것으로서 공무집행방해죄가 성립하지 않는다는 것인지 등 그 무죄의 이유를 명확히 밝혔어야 했다.

Nevertheless, the lower court found the Defendant not guilty of this part of the facts charged solely on the ground that the Defendant’s act of taking Nonindicted Party 1’s chest by his head twice without clarifying the meaning of this part of the facts charged, and without making any judgment as to this, the Defendant’s act of walking Nonindicted Party 1’s mouth in one time, thereby not constituting the crime of obstructing the performance of official duties. Thus, the lower court erred by failing to exhaust all necessary deliberations or omitting judgment, which affected the conclusion of the judgment.

B. As to whether the police officer's restraint is illegal performance of official duties

Article 6(1) of the Act on the Performance of Duties by Police Officers provides that “If a police officer deems that a criminal act is about to be committed in front of the police officer, the police officer may issue a warning to the person concerned to prevent the criminal act, and if it is urgently required due to the act’s danger and injury to human life and body, or grave damage to property, the police officer may restrain the act.” In order for a police officer’s restraint measure to be deemed lawful performance of his/her duties under the above provision, the act subject to criminal punishment can be objectively acknowledged, and there is a situation where it is objectively recognized that the act subject to criminal punishment is about to be committed in front, and the act is likely to cause harm to human life and body or grave damage to property unless the act is avoided, it must be an imminent situation other than the method of direct restraint (see Supreme Court Decision 2007Do9794, Nov. 13, 2008). However, whether a police officer’s restraint is legitimate or not shall be determined based on the specific situation at the time of the measure and not objectively objective criteria.

According to the evidence duly adopted, the Defendant was able to communicate with Nonindicted Party 5 in the Korean language, and caused an accident to which Nonindicted Party 2 was driven by Nonindicted Party 5 at the time and place indicated in the facts charged; ② Nonindicted Party 2 asked that Nonindicted Party 3 report the occurrence of an accident to the police for handling the accident; ③ Nonindicted Party 1 and Nonindicted Party 3 were sent to the scene with Nonindicted Party 5’s order, and Nonindicted Party 2 told Nonindicted Party 1 to look back to the scene of the accident, such as Nonindicted Party 3’s scambling, and that Nonindicted Party 4 and Nonindicted Party 4, etc. were sent to Nonindicted Party 5, and that Nonindicted Party 4 and Nonindicted Party 4, etc. were sent to the scene of the accident at the time when Nonindicted Party 5 and Nonindicted Party 5 were sent to the scene of the accident, and Nonindicted Party 4, etc. were scambling to the scene of the accident, and thus, it was difficult for the Defendant to have been present at the scene of the accident.

As shown in the above facts, in light of the specific circumstances at the time when persons wishing to make mutual assistance with their own nationality reach a distance of 1 to 2 meters, it can be objectively recognized that there is a situation where not only Nonindicted 2, but also Nonindicted 4, etc., were already considered to have committed an act of assault against Nonindicted 2, and the defendant was tried to commit an act of assault against Nonindicted 4, etc., and that there was an urgent situation other than the method of directly regulating the act of assaulting the above result, and thus, it cannot be seen that there was an imminent situation where the police officers were in danger of causing harm to human life and body unless the act of assault was avoided. Thus, it is reasonable to view that the above measures of the police officers as to the act of crime under Article 6(1) of the Act on the Performance of Duties by Police Officers were lawful in the line of duty as to the crime of crime under Article 6(1) of the Act on the Performance of Duties by Police Officers.

Nevertheless, the lower court, without considering the aforementioned specific situation at the same time, determined that the above measures taken by the police officers were illegal performance of official duties, which did not meet the requirements of Article 6(1) of the Act on the Performance of Duties by Police Officers, on the ground that it is difficult to view the situation where the criminal act was intended to have been committed solely on the ground that it was difficult to view that there was a situation where Nonindicted 7 and two male workers attempted to have a dispute with the police officer, without considering the aforementioned specific circumstances. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation and application of

2. As to the remaining part of innocence (including the part not guilty in the grounds)

For the reasons indicated in its holding, the lower court acquitted Nonindicted 5 of the charges of this case on the ground that there was no proof of crime regarding the obstruction of performance of official duties and injury to Nonindicted 5, violation of the Road Traffic Act (recovering to measure the noise level), and violation of the Road Traffic Act (re

Examining the reasoning of the judgment below in light of the records, some of the parts as seen in the above 1.1. are not appropriate. However, contrary to the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, thereby affecting the conclusion of the judgment, by misapprehending the legal principles on obstruction of performance of official duties,

3. As to the guilty part

Although the prosecutor appealed on the guilty portion of the judgment of the court below, there is no indication of the grounds for appeal in the petition of appeal and no statement of the grounds for appeal can be found in the appellate brief.

4. Scope of reversal

The part of the judgment of the court below as to the non-indicted 1's obstruction of the performance of official duties cannot be reversed for the reasons as seen earlier. Of the judgment below, the part of the judgment of the court below as to the non-indicted 1's acquittal and the guilty part should also be reversed.

In addition, the part of the judgment of the court below as to non-indicted 8's acquittal of the grounds for obstruction of the performance of official duties against non-indicted 8 is in a mutually competitive relationship with the reversed guilty part, which also should be reversed

5. Conclusion

Therefore, among the judgment of the court below, the guilty part (including the acquittal part on the ground of the obstruction of performance of official duties against the non-indicted 8) and the acquittal part on the obstruction of official duties against the non-indicted 1 are reversed, and this part of the case is remanded to the court below, and the remaining appeal is dismissed. It is so decided as per Disposition by the

Justices Shin Young-chul (Presiding Justice)