[2] Whether self-defense is established in a case where a flagrant offender committed an injury to a police officer during the course of resisting against the police officer's illegal arrest (affirmative)

The crime of obstruction of performance of official duties stipulated in Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. Here, "reasonable performance of official duties" refers to not only where the act belongs to the abstract authority of a public official, but also meets the legal requirements and methods concerning the specific performance of official duties. Meanwhile, according to Article 12(5) of the Constitution and Articles 213-2 and 72 of the Criminal Procedure Act, it is evident that in the event a judicial police officer arrests a flagrant offender, he/she must be given the summary of the crime, the reason for detention, and the opportunity to defend himself/herself. Thus, if a police officer tried to commit a flagrant offender with his/her real force without complying with the aforementioned due process, it cannot be deemed a legitimate performance of official duties (see, e.g., Supreme Court Decisions 9Do4341, Jul. 4, 200; 2004Do5894, Nov. 26, 2004). 4).

Of the facts charged in this case against the defendant, the summary of the injury and obstruction of the performance of official duties was arrested by the defendant on August 25, 2005 to the assistant non-indicted 1 and 2 belonging to the Busan Regional Police Agency as a flagrant offender in violation of the Immigration Control Act, etc. in front of the industry (trade name omitted) located in the Han-ri-ri-ri-ri-ri-si (hereinafter referred to as the "Seoul Regional Police Agency") on August 18:10, 2005, and the defendant was traveling on the defendant's passenger car while he was in motion to get out of the back seat glass and move to the defendant's vehicle, and the above non-indicted 1 committed assault, such as making the above non-indicted 1' face of the above non-indicted 1 on one occasion, and interfere with his legitimate execution of duties concerning his criminal investigation, and at the same time, the court below affirmed the judgment of the first instance that found the defendant guilty of the above facts charged.

However, in light of the contents of testimony in the court of first instance of the above non-indicted 1 and the arrest process revealed in the record, it is difficult to view that the above non-indicted 1 arrested the defendant as an offender in the crime of violating the Immigration Control Act, etc., and without delay, followed the procedure such as notifying the gist of the crime, reasons for arrest, right to appoint counsel

Therefore, since the above arrest of Nonindicted Party 1 cannot be deemed a legitimate execution of official duties, it does not meet the elements of the crime of obstruction of performance of official duties, and the defendant's act of injuring Nonindicted Party 1 in the process of resisting to the above arrest of Nonindicted Party 1 constitutes legitimate self-defense as an act to escape from the present unfair infringement on the body caused by illegal arrest, and thus constitutes legitimate self-defense. However, the court below affirmed the judgment of the court of first instance which found the defendant guilty of the above charges by deeming the above act against the Defendant as legitimate execution of official duties, and there is an error of law by misapprehending the legal principles on the crime of obstruction of official duties

On the other hand, the judgment of the court of first instance maintained by the court below recognized each of the above crimes and the violation of the Immigration Control Act and the violation of the Road Traffic Act (unlicensed driving) as concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced to a single punishment, so the entire judgment of

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Hwang-sik (Presiding Justice)