2016Do10544 Obstruction of Performance of Official Duties, Violation of the Road Traffic Act (Retoxicated Driving)

A person shall be appointed.

Prosecutor

Gwangju District Court Decision 2015No3217 Decided June 28, 2016

August 24, 2017

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

1. 이 사건 공소사실의 요지는, 피고인은 2015. 4. 3. 00 : 30경 광주 서구 B에 있는 ' C ' 앞 도로에서부터 D 이하 불상지에 있는 ' E ' 앞 도로에 이르기까지 약 50m 구간에서 혈중알코올농도 0. 134 % 의 술에 취한 상태로 오토바이를 운전하였고, 음주운전 여부를 확인하기 위해 출동한 경찰관들과 광주서부경찰서 F지구대로 임의동행한 후 당일 01 : 25경 경찰관 G로부터 음주측정을 요구받고 음주측정기에 입김을 불어넣는 시늉만 했다는 이유로 G로부터 재차 음주측정을 요구받자 G의 얼굴에 가래침을 뱉고 양손으로 G의 가슴을 2 ~ 3회 때리는 등 폭행하고, G에게 " 너 이 새끼 죽여버린다, 너 개새끼 집에 쫓아가서 가족들 다 죽여버린다 " 라고 말하여 협박하고, 같은 지구대 소속 경찰관 H이 피고인을 제지하자 H의 얼굴에도 가래침을 뱉고 " 너희 집에 가서 가족들을 죽여 버리겠다 " 라고 말하여 협박함으로써 경찰관들의 음주운전 단속 및 수사 업무에 관한 정당한 직무집행을 방해하였다는 것이다 .

The court below affirmed the judgment of the first instance court which acquitted the defendant of the charges of this case on the ground that the first assault and intimidation against the police officer G does not constitute a crime of obstruction of performance of official duties, and that the arrest of the flagrant offender of the crime of obstruction of official duties by the first assault and intimidation is unlawful, since the defendant's second assault and intimidation against the police officer H who proposed to leave the FF district to escape from the FF district to escape from the illegal arrest does not constitute a crime of obstruction of official duties, and the defendant's second assault and intimidation against the police officer H who proposed to escape from the FF district does not constitute a crime of obstruction of official duties, and the result of the measurement of drinking conducted in an illegal arrest (3) contain all of the reports on detection of drinking drivers, the circumstantial statements of drinking drivers, the records on the use of drinking meters, and the records on the measurement of drinking alcohol are inadmissible, and there is no evidence to acknowledge the crime of violation of the Road Traffic Act (DF) against the defendant.

2. However, we cannot accept the judgment of the court below for the following reasons.

A. The crime of obstruction of performance of official duties is established when a public official’s performance of official duties is legitimate, and the legitimate performance of official duties here must be within the authority of the public official as well as within the abstract authority of the public official. The requirements and methods of performing official duties must be met. Whether a public official’s performance of official duties is legitimate should be determined objectively and reasonably based on the specific circumstances at the time of the act (see, e.g., Supreme Court Decisions 200Do3485, Apr. 12, 2002; 2008Do4721, Apr. 28, 2011).

B. According to the reasoning of the first instance judgment maintained by the lower court and the evidence duly admitted by the first instance court, the following facts and circumstances are revealed.

( 1 ) 피고인은 2015. 4. 3. 00 : 30경 광주 서구 B에 있는 ' C ' 앞 도로에서 음주운전을 하다가 접촉사고를 냈고, 사고 신고를 받고 출동한 경찰관들과 음주운전 여부를 확인하기 위해 광주서부경찰서 F지구대로 임의동행하였다 . ( 2 ) 피고인은 같은 날 01 : 18경 및 01 : 25경 위 F지구대에서 경찰관 G로부터 2회에 걸쳐 음주측정에 응할 것을 요구받았으나 음주측정기에 입김을 불어넣는 시늉만 하는 등의 방법으로 이에 불응하고는 음주측정이 되지 않았다며 F지구대 밖으로 나가려고 하였다 .

(3) The investor G was prevented from moving out of the F District. Accordingly, the Defendant assaulted G by spiting spits, spits, spits, spits, and spits the chests of G into 2 to 3 times, and threatened G by “Wing away this bom, a bomb, a flads, and a fladsing away from the bombs house, thereby threatening his family members.”

(4) Accordingly, G immediately arrested the Defendant as a flagrant offender on the grounds that the Defendant interfered with the performance of official duties by assaulting and threatening the police officer in the process of performing his/her lawful duties as above. (5) While the Defendant was arrested as a flagrant offender, at around 01:32 on the same day, he/she was requested from G to take a second alcohol alcohol test, and accordingly, the Defendant’s blood alcohol concentration was measured at 0.134%.

(6) After completing a drinking test as above, the Defendant attempted to go out of the FF area. As police officers, the Defendant spited the h’s face, thereby threatening his family members to die on the H’s face.

다. 위와 같은 사실과 사정들을 앞서 본 법리에 비추어 살펴보면, 비록 피고인이 임의 동행 후 언제든지 경찰관서에서 퇴거할 자유가 있기는 하지만, 이 사건 당시 피고인은 G로부터 음주측정을 요구받고 음주측정기에 입김을 불어넣는 시늉만 하는 등의 방법으로 이에 불응하고는 음주측정이 되지 않았다며 F지구대 밖으로 나가려고 하였으므로 이와 같은 피고인의 행위는 특별한 사정이 없는 한 전체적으로 음주측정을 거부하는 행위로 볼 수 있어, G가 이를 제지하는 정도의 행위는 도로교통법 제44조 제2항에 따른 경찰공무원의 정당한 음주측정 요구행위로서 적법한 직무집행에 해당한다고 할 것이다 .

Therefore, Defendant’s primary act of assault and intimidation against the legitimate execution of G constitutes the crime of obstruction of performance of official duties, and the second act of assault and intimidation against H, which prevents Defendant from attempting to escape from it without permission after being lawfully arrested as a flagrant offender of the crime of obstruction of official duties, also constitutes the crime of obstruction of official duties. In addition, the second act of assault and intimidation against H, which constitutes the crime of obstruction of official duties. Furthermore, the Defendant’s report on detection of drinking drivers, the statement on the circumstances of drinking drivers, the report on the use of drinking meters, and the record of measurement of drinking alcohol all are admissible as evidence for conviction of the crime of violation of the Road Traffic Act (driving).

Nevertheless, the lower court rendered a not guilty verdict on all the charges of this case on the grounds as stated in its holding, on the premise that the act of a police officer G to restrain the Defendant who was going to leave the FFF district at any time in response to a police officer’s voluntary request for behavior. In so doing, the lower court erred by misapprehending the legal doctrine on the legality of performing official duties in the crime of obstruction of performance of official duties, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Kim Jae-han

Justices Park Sang-ok

Justices Park Il-san