A. Of the facts charged in the instant case, Article 211 of the Criminal Procedure Act provides that the arrest of a flagrant offender is “a person who is in the process of, or is later in, the commission of, the crime.” Unlike Article 200-3 of the Criminal Procedure Act on Emergency Arrest, it does not require the necessity of arrest such as the risk of escape or destruction of evidence.

Nevertheless, the court below acquitted the police officers of the obstruction of performance of official duties among the facts charged in this case on the ground that the act of arresting the defendant was illegal performance of official duties, which did not meet the requirements for arrest of flagrant offender, and the act of the defendant against this act constitutes self-defense and thus the illegality of the act of self-defense. In so doing, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

B. Of the facts charged in the instant case, the lower court’s punishment (one million won of a fine) is too unhued and unreasonable.

2. Determination

A. 1) Determination of the assertion of mistake of facts and misapprehension of legal principles can be made on a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act) any person may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act), i.e., the necessity of arrest, i., the necessity of escape or destruction of evidence, and the arrest of a flagrant offender who fails to meet such requirements constitutes an illegal arrest without a warrant, which is not based on legal basis.

Here, the issue of whether the requirements for arrest of flagrant offenders are met should be determined based on the situation at the time of arrest, and the subject of investigation such as prosecutor or judicial police officer.