공무집행방해등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 15 million.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. Defendant 1) In the misapprehension of the legal doctrine, Defendant 1 did not measure the Defendant’s alcohol level at the time of taking a double arms from Gman, and thus, Defendant cannot be deemed as the current offender of the crime of violating the Road Traffic Act (driving).
Nevertheless, Gman's act of taking the two arms of the defendant into two hands is illegal execution of official duties beyond the limit of voluntary accompanying.
As long as the above act of Gman is illegal, it does not constitute a crime of interference with the execution of official duties by the defendant to injure Gman's ppuri.
Therefore, the arrest of a flagrant offender on the grounds of the charge of violating the Road Traffic Act or obstructing the performance of official duties is illegal.
B. The result of the measurement of drinking alcohol conducted by the defendant in a state of illegal arrest constitutes an illegally collected evidence and thus, its admissibility is not admissible.
2) Improper sentencing
B. Prosecution’s improper sentencing
2. Determination
A. 1) As to the Defendant’s assertion of misapprehension of the legal doctrine, interference with the performance of official duties is premised on the lawful performance of official duties by public officials. Whether a certain performance of official duties by public officials belonging to abstract authority is legitimate should be determined objectively and reasonably based on specific circumstances at the time of the act, and it should not be determined ex post facto in pure objective criteria
Like the same, the legality of arrest in the act of committing an offense ought to be objectively determined based on the specific situation at the time of arrest, and it is not based on whether it was recognized as an offender later (see Supreme Court Decision 2011Do4763, Aug. 23, 2013, etc.). Meanwhile, prevention, suppression and investigation of a crime constitutes a police officer’s duties (Article 2 of the Act on the Performance of Police Officers’ Duties), and the specific details and methods of such act are delegated to a reasonable discretion based on a police officer’s professional judgment.
Therefore, it is appropriate for police officers to the extent of their human and physical capabilities in light of their specific circumstances.