The defendant shall be innocent.

(a) Injury and obstruction of performance of official duties;

On February 15, 2009, at around 01:20, the Defendant was demanded to present an identification card to Nonindicted 3, a police officer belonging to the Incheon Bupyeong Police Station, who was conducting inspections at the above location while drinking alcohol on the front of ○○○○, which was located in Bupyeong-gu, Incheon, Bupyeong-gu, Incheon, Bupyeong-gu, (number 1 omitted), and riding and drinking a bicycle, and was conducting inspections at the above location.

In the process, the Defendant did not conduct a usual inspection against the Defendant, and Non-Indicted 3 inspected the Defendant, and took a bath to read, “The Megae, age, franchise, will be reported to the Army Captain’s origin.” Nonindicted 3 committed assault, such as assaulting Nonindicted 3’s breath, thereby destroying the bottom of the breath, thereby obstructing the police officer’s legitimate execution of duties concerning the prevention, suppression, and investigation of the crime, and at the same time, inflicted injury on the victim Non-Indicted 3 (age 26) in need of approximately three weeks of treatment.

(b) Definating;

피고인은 위 일시, 장소에서 위와 같이 공소외 3과 실랑이를 하고 있을 때 같은 소속 경위 공소외 1, 경사 공소외 2가 피고인을 제지하며 “경찰관에게 이러시면 안 됩니다. 경찰관이 검문하는 거니까 이해하고 협조해주세요.”라고 말한 것에 화가 나 함께 검문을 하고 있는 경찰관 3명이 있는 자리에서 피해자 공소외 1에게 “넌 또 뭐야. 힘없는 놈들이. 니가 짱이냐. 내가 누군지 알아? 씨팔놈들이 짜증나네.”라고 욕설하고, 피해자 공소외 2에게 “이 씨팔놈아, 개새끼야.”라고 욕설을 하는 등 공연히 피해자들을 각각 모욕하였다.

2. The judgment of the court below

The court below found the defendant guilty of this part of the facts charged by taking into account the following evidences.

3. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

The Defendant did not commit the same injury as the facts charged against the police officers. Even if the Defendant committed such act, this constitutes legitimate self-defense or legitimate act with respect to the performance of official duties. Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

Even if the defendant's act should be punished, the sentencing of the court below (the fine of three million won) is too unreasonable.

4. Judgment on misconception of facts or misapprehension of legal principles

(a) Facts of recognition;

According to the evidence duly adopted and examined by the court below, the defendant's partial statement in the court room, and the witness's legal statement in the court room, the following facts and circumstances are recognized:

1) At around 01:00 on February 15, 2009, Non-Indicted 1, Non-Indicted 2, and Non-Indicted 3, a police officer, who was employed in the calendar district of the Bupyeong-gu Police Station: (a) parked in the front of the ○○○ road located in Bupyeong-gu Incheon, Bupyeong-gu, Incheon; (b) opened a cover signboard and a container, etc. on the road; and (c) opened a police officer’s fright-setting. At around 01:00 on the same day, there was a handbag case using bicycles on the street (number 2 omitted) of Gyeyang-gu, Incheon, Gyeyang-gu, Incheon; (b) the suspect escaped to the same direction as the Bupyeong-gu, Incheon; (c) the occurrence of the foregoing day and the order of inspection and search of bicycles, which was known to the police officer at around 01:14, with his head, and thus, was informed of the appearance of a male offender, and (d) the suspect’s appearance was short.

2) After listening to the foregoing vision, at around 01:20, Nonindicted 1, 2, and 3 discovered that the Defendant, who is coming from the place of check-up (the prosecutor was locked, the inspector was worn, and the inspector was loaded on the front of the bicycle) while driving a bicycle at the shooting distance from the 01:20 on the front side of the front line of the bicycle. First, Nonindicted 2 demanded the Defendant, who was going into India, to stop on the right side of the lower side of the bicycle, but the Defendant stopped the bicycle and passed only Nonindicted 2 without stopping. Accordingly, Nonindicted 3, who was on the rear side of Nonindicted 2, demanded the Defendant to stop the front of the Defendant’s bicycle and set up the bicycle at the front of the front line of the police station, and failed to comply with the Defendant’s request to stop the Defendant’s check-up at the right side of the bicycle, and the Defendant continued to check-up at the front of the police station or the Defendant’s request to stop the Defendant from leaving the front of the bicycle.

3) When it was no longer possible to proceed with a bicycle on the land of Nonindicted 3, Nonindicted 1, 2, and 3, the Defendant resisted that he would be able to handle the offender, and the Defendant spawn among the two people, and the Defendant spawned off Nonindicted 3’s spathing and pushed away from the bicycle, and the Defendant spawned the two people together. As such, Nonindicted 1, 2, and 3 continued to go through the Defendant’s breathing, etc., the Defendant arrested the Defendant as a flagrant offender in the crime of obstruction of the performance of official duties and of insult.

B. As to obstruction of performance of official duties

1) The crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established only when the performance of official duties by a public official is legitimate. Here, legitimate performance of official duties refers to not only where the act belongs to the abstract authority of a public official, but also where the act satisfies the legal requirements and methods concerning specific performance of duties (see Supreme Court Decision 2006Do148, Sept. 8, 2006, etc.). Therefore, in this case, it is problematic whether the police officer's non-examination of the defendant was legitimate.

(ii) the requirements and method of exercising the questioning;

Article 3 of the Act on the Performance of Duties by Police Officers may stop and ask questions to a person who has a considerable reason to suspect that he has committed or is about to commit a crime, judging from his suspicious behavior and other surrounding circumstances (Article 1). In this case, the police officer, while presenting to the person concerned a certificate indicating his identity, shall specify his affiliation and name, and explain the purpose and reason thereof (Article 4), and the person concerned shall not be detained unless it is governed by the Act on Criminal Procedure, and shall not be compelled to answer against his will (Article 7).

According to the above provision, a person who has considerable grounds to suspect that he/she has committed, or is about to commit, any crime based on a reasonable judgment on the suspicious act and other surrounding circumstances. In this case, a person is a person who is suspected of having committed, or is about to commit, any crime. The suspicious operation refers to a situation in which he/she is suspected of being out of ordinary activities in view of natural behavior, attitude, language, appearance, personal belongings, etc., and other surrounding circumstances refer to the situation other than the directly tracing situation of the person, such as the time and physical situation according to the day-time approval at night, whether he/she is not a dangerous object, and his/her attitude and personal situation such as the attitude of the person surrounding. When there are reasonable grounds to suspect that he/she has committed, or is about to commit, any crime by taking such circumstances into consideration, it refers to a reasonable possibility to the extent that he/she has naturally thought such crime, and in such a case, it refers to a reasonable possibility to the extent that he/she is deemed to have been aware of it, rather than the arrest or detention under the Criminal Procedure Act.

In addition, a police officer may stop a person subject to inspection in accordance with the above provision and question him/her. Here, the stop means stopping in the case of a pedestrian, or stopping in the case of a person on board a motor vehicle, earth, sand, or bicycle. In light of the purport of the system of non-examination, it is deemed that a police officer’s explanation that a person who fails to clearly determine whether to stop is clearly determined is at a certain distance and cooperates in his/her duties by oral means is permitted unless it is restricted to the freedom of his/her physical movement. However, as long as responding to a question which is the object of suspension is left at the discretion of the other party, it is practically not permitted to compel the other party to leave the place in such a way that the police officer expressed his/her intention to refuse to answer the question, or make the other party stop using force to prevent him/her from driving the motor vehicle, sand, or bicycle from driving, or not returning personal belongings.

3) Whether the crime of obstruction of performance of official duties is established against the defendant

It is recognized that the Defendant did not appear salperous until the time of the instant case, when the Defendant went in place. However, it is recognized that there were circumstances to bring about a reasonable possibility that the Defendant may be an offender of the said salpering by taking into consideration the surrounding circumstances, by taking account of the following: (a) the Defendant’s appearance took place in the nearby area, and the Nonindicted Party 1, etc. was also issued an order for inspection and search; and (b) the Defendant was the suspect of the instant case at the time of the outbreak, place of inspection, inspection, and inspection and search order; and (c) at the time of the occurrence of the instant case, Nonindicted Party 1, etc. by taking into consideration the surrounding circumstances. Accordingly, it is reasonable to deem that the Defendant

However, the following circumstances acknowledged as above, namely, ① the Defendant was late at the time of the instant case at around 01:20, and the Defendant was trying to stop the Defendant’s front door, and asked Nonindicted Party 3 to stop the Defendant from participating in the instant bicycle search, and to stop the Defendant’s official questioning by taking account of the following circumstances: (a) the Defendant’s refusal to undergo an inspection on the way of ordinary ordinary times; and (b) the police officer, despite Nonindicted Party 2’s restraint; and (c) the Defendant, despite Nonindicted Party 3’s restraint, failed to stop the bicycle; and (d) the Defendant’s refusal to stop the Defendant’s official questioning at the time of the instant case; and (e) the Defendant’s refusal to stop the Defendant’s official questioning by taking account of the fact that Nonindicted Party 3’s refusal to stop the Defendant’s passage; and (e) Nonindicted Party 3’s demand for the Defendant to stop the Defendant’s front door and stop the Defendant’s official questioning by failing to comply with the Defendant’s request to stop the Defendant’s physical inspection.

Therefore, even though the defendant clearly expresses his intention to refuse to comply with the questioning, the act of Nonindicted 3’s act of obstructing the defendant from participating in the act of obstructing him and demanding him to continue to respond to the check is forced to exercise the force beyond a verbal perception, and it does not necessarily deviate from the method limit of questioning under the Act on the Performance of Duties by Police Officers. Therefore, the non-indicted 3’s non-examination conducted by such method cannot be regarded as a legitimate police officer’s execution of duties, and even if the defendant committed assault in the course of refusing to answer it, the crime of obstruction of performance of official duties is not established. Accordingly, the judgment of the court below which convicted him of this part of the charges is erroneous in the misapprehension of legal principles as to the crime of obstruction of performance of official duties, and the defendant’s assertion pointing this out

C. As to the injury and insult

In a case where an injury is inflicted on a public prosecutor or police officer in the course of resisting illegal emergency arrest or arrest of an offender in the act of committing an act of self-defense, it constitutes self-defense (see Supreme Court Decisions 2006Do148, Sept. 8, 2006; 2006Do2732, Nov. 23, 2006, etc.).

Upon examining the evidence duly admitted and examined in the aforementioned facts, the court below and the court below acknowledged the following facts: (a) the Defendant was unable to record Non-Indicted 3’s flapsing together with his flapsing, and Non-Indicted 3 was damaged by converging them for about three weeks; and (b) the Defendant made Non-Indicted 3’s non-indicted 3’s flapsing to a certain extent while forcing him to undergo a flapsing examination; and (c) according to the above charges of injury and insult, the evidence supporting the above charges stated that the Defendant inflicted an injury or insult on Non-Indicted 3, etc. regardless of the flapsing examination of the instant case. However, if the evidence supporting the above charges is limited to the statements of the police officers conflicting with the Defendant, and there was no objective evidence (the police officer stated that the Defendant did not have recorded on the scene of an flapsing examination but did not appear to have been forced to use the Defendant’s flapsing or flapsing the Defendant’s attempt during the examination process.

Examining the above circumstances in light of the legal principles as seen earlier, it is reasonable to view that Nonindicted 3’s act deviates from the lawful performance of official duties and deviates from the method limit of questioning, and that the Defendant’s act committed an injury to Nonindicted 3 in the course of resistance to escape from the present unreasonable infringement on the body due to the illegal autopsy as seen above, and that the Defendant’s act of insult to Nonindicted 3 constitutes self-defense and thus, illegality is excluded. Nevertheless, the judgment of the court below which convicted the Defendant of this part of the facts charged is erroneous in the misapprehension of legal principles as to mistake of facts or self-defense. Thus, the Defendant’s assertion pointing this out has merit

5. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and without examining the above argument of unfair sentencing, it is again decided as follows.

The summary of the facts charged of this case is as stated in Paragraph (1) above, but this constitutes a case where there is no proof of facts constituting a crime as stated in Paragraph (4) above, and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325

Judges Seo Gyeong-sung(Presiding Judge)

1) Although the Supreme Court precedents that explicitly declared these legal principles did not find, if the request for accompanying under Article 3 of the Act on the Performance of Duties by Police Officers, which is conducted by police activities for the purpose of the administrative police, leads to an investigation governed by the Criminal Procedure Act, the intent of the Supreme Court Decision 2005Do6810 Decided July 6, 2006 that if the request for accompanying under the above provision leads to an investigation subject to the regulation of the Criminal Procedure Act, the voluntariness shall be strictly guaranteed, and if the police officer did not return the resident registration certificate and personal belongings to the other party in the course of questioning, so that the other party does not leave the place, it shall be deemed as an illegal confinement, and thus, the purport of the Seoul District Court Decision 98Na467 Decided January 20, 199 that recognized consolation money against the other party (the above judgment became final and conclusive without the explanation of reasons in the Decision 9Da13874 Decided May 14, 199).