공무집행방해등
All appeals filed by the prosecutor against the Defendants are dismissed.
1. The summary of the grounds for appeal (misunderstanding of facts, misunderstanding of the legal principles) The lower court accepted the Defendants’ assertion that the Defendants were innocent, and acquitted all of the Defendants, on the ground that the Defendants’ act of inflicting bodily injury upon the police officer in the course of arresting A by the J was committed in order to oppose the unlawful performance of official duties using an electronic shock machine (theme) during the process of arresting A.
However, at the time, the use of the electronic shock machine by J was a legitimate execution of official duties, as it was inevitable for the police officers to interfere with the use of the electronic shock machine and to interfere with the execution of official duties by the police officers who called up to the scene after receiving a report to sell alcoholic beverages in the singing practice and investigate A to prevent him from performing his official duties.
Therefore, the judgment of the court below which acquitted the Defendant of the facts charged of this case on the premise that the use of the above electronic shock machine is unlawful is erroneous, or it erred by misapprehending the legal principles.
2. Determination
A. Interference with the execution of official duties under Article 136 of the Criminal Act is established only when the performance of duties by a public official is legitimate. Here, legitimate performance of official duties refers to not only the abstract authority of a public official but also the case meeting the legal requirements and methods for specific performance of duties. Thus, if a police officer intends to arrest a suspect without complying with due process, it cannot be deemed legitimate performance of official duties.
In addition, if it is inevitable to view that the act of arresting a police officer goes out of lawful performance of official duties and illegally arrests a police officer, the act of inflicting an injury on a police officer in the course of resisting the suspect to escape from such arrest constitutes an act to escape from the current illegal infringement on the body caused by an illegal arrest and constitutes a legitimate defense (see, e.g., Supreme Court Decisions 9Do4341, Jul. 4, 200; 2017Do10866, Sept. 21, 2017). Meanwhile, not only one of his/her legal interests but also the legal interests.