The case holding that the judgment of the court of first instance which acquitted the defendant, was erroneous in the misapprehension of legal principles or erroneous in the misapprehension of legal principles, in case where the defendant was indicted on charges of interfering with the duty of report processing and the duty of police officers concerning the arrest of flagrant offenders by 112 on the ground that the police officers, who discovered the defendant at the site location according to the category of one person among the reporter, attempted to detect the defendant and find the identity and site conditions of the defendant at the site and attempted to confirm the identity and the situation of the site after receiving 112 reports stating that "any person who has obstructed the progress of the vehicle and loaded a dog in the glass window", who was sent to the police officer who was tracking him, committed violence by breaking him, breaking him/her, breaking him/her, cutting him/her down his/her clothes, cutting him/her down his/her face while on the road and arrested him/her and interfere with the police officer's duties

Defendant was prosecuted on charges of obstructing police officials in handling reports and performing their duties regarding arrest of flagrant offenders by 112 on the ground that he/she was found to have discovered the Defendant at the site and attempted to verify his/her identity and site conditions according to the category of one person among the reporting persons, and destroying the police officers who tracking him/her by putting himself/herself in the face of the police officer, and committing violence by putting him/her in the face of the police officer during his/her arrest.

In light of the fact that police officers arrive at the reported place after receiving a report on general traffic obstruction and animal abuse charges, the police officers already did not appear at the scene and the act of interference with traffic or animal abuse was terminated, and thus, the police officers cannot be seen as part of arrest of flagrant offenders. However, on the other hand, since police officers discovered the defendant, and there is considerable reason to suspect the defendant as the suspect of crime from the police officers' point of view, the defendant constitutes a person subject to non-explosive questioning under Article 3 (1) 1 of the Act on the Performance of Duties by Police Officers, and the police officers' act of putting clothes upon the suspect was an exercise of force against the defendant, but the defendant's act of obstructing the defendant's escape and obstructing the police officers from executing his/her duties was deemed to be an inevitable measure to stop the police officers' escape, and the defendant's act of obstructing the defendant's escape and obstructing the police officers' questioning of the fact that he/she was not only passive but also an act of interfering with the police officers' own traffic, etc., and thus, it is acknowledged that the defendant was included in the first instance.

Article 136(1) of the Criminal Act; Articles 211 and 212 of the Criminal Procedure Act; Articles 1, 3(1), (2), (3) and (7) of the Act on the Performance of Duties by Police Officers

Defendant

Prosecutor

Jeon-chul et al.

Attorney Park Sung-jin

Ulsan District Court Decision 2018Da1056, 2704 decided November 30, 2018

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

To order the accused to provide community service for 120 hours.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles (the obstruction of performance of official duties)

1) In full view of the fact that the police officer called to the site upon receiving a report of four or more cases and 112, the police officer did not appear to be the defendant when the police officer arrived at the site of this case, but one of the 112 reporters was the direction of movement of the defendant, and that the police officer was dispatched to the site immediately around about 16:06, which was about 2-3 minutes after the 112 report, and the police officer was tracking the defendant at around 16:30, and there was time and place close to the arrest after the report of the defendant, it is reasonable to view the defendant as a flagrant offender.

2) Even if not, considering the fact that the Defendant began to run away a police officer, and that the Defendant was moving out at the time, it constitutes quasi-flagrant offender, since it constitutes a quasi-flagrant offender, in view of the fact that a person attempts to flee or use stolen goods, or with deadly weapons or other things sufficient to recognize that he/she was used in committing a crime.

3) The act of locating a defendant who escaped without complying with the police officer’s inspection and breaking clothes for the purpose of stopping is a method that can be accepted by social norms to the extent necessary to achieve the purpose. Thus, it cannot be deemed that the execution of duties by the police officer of this case deviates from the method limit of questioning by the police officer.

4) In full view of the above facts, the judgment of the court below which acquitted the police officer of this case on the ground that the performance of duties by the police officer was unlawful, is erroneous in the misapprehension of legal principles or misconception

B. Unreasonable sentencing

Since the portion of the obstruction of performance of official duties sentenced to innocence is reversed, the sentence imposed by the court below (two years of suspended sentence in October) is too uneasible and unfair.

2. Judgment on misconception of facts and misapprehension of legal principles

A. Summary of this part of the facts charged

At around 16:20 on December 17, 2017, the Defendant, upon receiving a report from 112, the Defendant, at around 16:20, escaped the said police officers, Nonindicted 1 and Nonindicted 2, who were called out, to check the Defendant’s identity and on-site conditions, in order to have the said police officers know the Defendant’s identity and on-site conditions.

In order to confirm the facts of the 112 report, the Defendant 1, who was in his hands, kidddd the Defendant by hand, and seeed Nonindicted 1’s face on the ground of the ground, with Nonindicted 1’s hand going up on the body of Nonindicted 1, and expressed Nonindicted 1’s face “I see, do not see, do not see, do so,” and again, the Defendant was frightd with Nonindicted 1, who was reported while her escape.

Since then, while the Defendant was arrested by Nonindicted Party 1 and Nonindicted 2 and moved to patrol lanes, he spited the face of Nonindicted Party 2 three times.

Accordingly, the defendant interfered with the legitimate execution of duties by police officers on 112 reporting processing and arrest of flagrant offenders.

B. The judgment of the court below

1) The lower court acknowledged the following facts based on the evidence duly adopted and investigated by the lower court.

① Police officers Nonindicted 1 and Nonindicted 2 were sent to the National Highway No. 31 in the vicinity of the Ulsan (location omitted) nuclear power plant, upon receiving a report around 16:06:40 on December 17, 2017, as police officers belonging to the patrol team of the Ulsan ○ Police Station, and on December 17, 2017, as police officers belonging to the patrol team of the Ulsan ○○ Police Station.

The report of 112 received by the △△ Police box at the time was: “The general name of a man takes a dog, takes a scambling and sending it from the road to each other (15:59:43, case number 621, traffic congestion by type)”; and “A man opens a free window of a vehicle at the road and obstructs the progress of the vehicle.” The CCTV is not (16:03:17, case number 623, type 623 and other types of crimes).” “The CCTV was installed at the free window of a vehicle (the time of receipt, the number is 16:03:03:17, case number 623, type 628, type 8, type 16:28, type 16:29, type 626).”

② At around 16:06:40, Nonindicted Party 1 and Nonindicted 2 did not appear to be the suspect who interfered with traffic or was traveling on the national highway of the reported Riwon distance, which is the place for reporting. However, Nonindicted Party 1 and Nonindicted 2 told that the nuclear power plant guard staff (one of the 112 reporters) in the neighboring area (“one of the 112 reporters is going to the nuclear power plant,” and Nonindicted Party 1 and Nonindicted 2 were a criminal (the Defendant) in the vicinity of the nuclear power plant. At this point, the Defendant began to escape of the police officer, and Nonindicted Party 1 started to track the Defendant on the road below, and Nonindicted Party 2 divided it into the road.

③ Nonindicted Party 1, while tracking the Defendant’s clothes, boomed Nonindicted Party 1’s hand, pushed Nonindicted Party 1’s face above the body of Nonindicted Party 1, who was over the land and pushed Nonindicted Party 1’s body, slicked Nonindicted Party 1’s body, and slicked Nonindicted Party 1’s body. As the reported slicker, Nonindicted Party 1’s body was faced.

④ At around 16:30, Nonindicted Party 1 arrested the Defendant in the act of committing an offense of obstruction of performance of official duties, and notified the Defendant that the Defendant had the reason for arresting him, right to appoint an attorney, and right to defend himself. Nonindicted Party 1, who followed Nonindicted Party 2, was carrying the Defendant into the patrol vehicle.

2) In full view of the facts acknowledged as above and the following circumstances, the lower court determined that the act of police officers tracking the Defendant and putting clothes on the Defendant cannot be seen as lawful performance of official duties, and thus, even if the Defendant committed an assault against the police officer in order to escape arrest or resisting the police officer, the crime of obstruction of performance of official duties is not established, and that the Defendant was acquitted pursuant to the latter part of Article 325 of the Criminal Procedure

(1) Whether the defendant is a flagrant offender

When police officers arrive at the reported place after receiving 112 reports due to ordinary traffic obstruction and animal abuse charges, the suspect was not at the site and the traffic obstruction or animal abuse was terminated. Even if the suspect was suspected of committing an act reported by the Defendant, the police officer’s act cannot be seen as “a person who is in the process of or is in the process of committing a crime,” and thus, Nonindicted 1’s act of putting clothes on the Defendant in pursuit of the Defendant does not correspond to the act of arrest in the act of committing a crime.

(2) Whether the defendant constitutes a quasi-flagrant offender

Article 211(2) of the Criminal Procedure Act does not apply to quasi-flagrant offender under Article 211(2) of the same Act, inasmuch as a police officer was absent from the reporting site at the time of arrival of the police officer, but only one of the reporters was “the direction where the suspect was identified as having been the suspect,” and does not constitute a quasi-flagrant offender under Article 211(2) of the same Act. Since a criminal act has already been completed and the accused was not at the site and the Defendant was not directly identified as a criminal offender by witnesses

(3) Whether tracking constitutes an autopsy under Article 3 (1) of the Act on the Performance of Duties by Police Officers

Article 3(1) of the Act on the Performance of Duties by Police Officers provides that, in principle, the unexplosive questioning of a police officer is based on verbal perceptions, it has a way to prohibit police officers from exercising their clothes. In this case, Nonindicted 1 stated that police officers were almost fluent while tracking a defendant, and that police officers took clothes of the defendant. As such, the police officers’ attachment of clothes of the defendant goes beyond the bounds of the method of unexplosive questioning because they constitute the exercise of physical force against the person subject to inspection. Furthermore, even when reporting 112, the fact of suspicion of the defendant goes beyond the bounds of the method of questioning by police officers as traffic obstruction and animal abuse, and the smooth traffic has been resumed. Therefore, in terms of seriousness of the crime and urgency of the situation, it is doubtful that police officers need to follow clothes to the extent that they are imposive by tracking the defendant for questioning the facts of suspicion, and there is no other evidence to prove that the police officers’ lawful execution of clothes is beyond the limits of their official duties.

C. The judgment of this Court

The key issue of this case is whether the act of putting clothes of the defendant after the escape of the police officer, following the escape of the defendant, constitutes legitimate performance of official duties.

1) Relevant legal principles

A) Comprehensively taking into account the purpose of the Act on the Performance of Duties by Police Officers, the contents and structure of Articles 1(1) and (2), 3(1), (2), (3), and (7) of the same Act, in order to ask questions to a person subject to the provision of Article 3(1) of the same Act, a police officer may suspend the target in such a manner as to be acceptable by social norms within the minimum extent necessary for achieving the purpose, in light of the seriousness of a crime, relation with a crime, urgency of circumstances, degree of suspicion, necessity of questioning, etc., and may investigate whether a police officer carries any dangerous weapon with questions (see Supreme Court Decision 2010Do6203, Sept. 13, 2012). If an act of tracking a police officer to stop a defendant and ask questions, it is permitted within the scope necessary for accomplishing the purpose of question in light of severity of a crime, relevance to a crime, urgency of circumstances, degree of suspicion, necessity of questioning, etc., as well as the scope necessary for achievement of social norms (see Supreme Court Decision 2097Do.).

Under the premise that the other party is a person subject to suspension under Article 3(1) of the Act on the Performance of Duties by Police Officers (hereinafter referred to as “person subject to non-explosion”). In this case, the situation where a police officer trackings a person subject to non-explosion will occur when the other party intends to flee or flee. It should be interpreted that the exercise of force to the extent that it does not reach force against the person subject to non-explosion examination, i.e., the exercise of force to the extent that the other party’s arms intending to flee, i.e., to escape, or asking questions about necessary matters, should be permitted. This is because even if a person subject to non-explosionsion can trace a person subject to escape, but in such a case, if the exercise of force is prohibited, the act of tracking the other party to stop the non-explosion examination is virtually meaningful, and it is likely that the system of non-explosion examination might lose its effectiveness.

B) Any person may be arrested without a warrant when he/she intends to flee against who is a person (Article 211(2)4 of the Criminal Procedure Act). The crime of obstruction of performance of official duties is a premise for a legitimate performance of official duties by a public official. Whether a certain official duties by a public official belonging to abstract authority is legitimate or not should be determined objectively and reasonably based on the specific situation at the time of the act, and it should not be determined ex post facto in pure objective criteria. Likewise, the legality of the arrest of a flagrant offender should be objectively determined based on the specific situation at the time of the arrest, and it should not be based on whether the person is recognized as an offender later (Supreme Court Decision 201Do4763 Decided August 23, 2013)

2) Determination

A) Article 211(a) of the Criminal Procedure Act provides that “after the commission of a crime, i.e., the latter person of the commission of the crime,” refers to cases where it is evident from the standpoint of the person who arrests the offender immediately after the commission of the crime. As to a flagrant offender within the original meaning of Article 211(1), the above provision stipulates “after the commission of the crime, i.e., the latter person of the crime,” and stipulates “after the commission of the crime,” and in Article 211(2), the term “after the commission of the crime,” means the last and last stage of the commission of the crime, or the time connected thereto, and thus, it can be deemed a flagrant offender only if it is clearly recognized that the person who is arrested in consideration of time and place is a flagrant offender (see, e.g., Supreme Court Decision 91Do1314, Sept. 24, 191).

In full view of the fact that police officers were reported 112 on charges of general traffic obstruction and animal abuse and arrived at the reported place, there was no suspect, and traffic obstruction and animal abuse had already been completed, the judgment of the court below is justified in the judgment of the court below that, even if the defendant was suspected of committing an act reported by him, it cannot be viewed as a "person who is in the process of or is in the process of committing a crime, i.e., the execution of a crime," and thus, it cannot be viewed as a "person who is in the process of or in the process of committing a crime."

B) However, in light of the above legal principles, in full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below and the court below, it is reasonable to deem that the police officer's performance of official duties related to measures to prevent the defendant from questioning and arrest of flagrant offenders (quasi flagrant offenders) is legitimate, and the defendant is determined to interfere with the performance of official duties by using violence against these police officers. Therefore, the judgment of the court below is erroneous in the misunderstanding of facts or misunderstanding of legal principles, and the prosecutor's allegation in this part is with merit.

① On December 17, 2017, Nonindicted Party 1 and Nonindicted Party 2 received 112 reports from police officers, around 16:03:17 to 16:04:39, to the effect that “any male is leaving the vehicle and interfering with the proceeding of the vehicle,” and the order was issued at around 16:03 to 16:4:47 on the same day (COE 1) (Evidence No. 41-44 pages), Nonindicted Party 1 and Nonindicted Party 2 sent to the site and asked the Defendant from the nuclear power plant guard staff (one of the 112 reporters) who was in the vicinity of the site and was waiting for the Defendant in the vicinity of the nuclear power plant, but the Defendant immediately escaped from the police officers.

② Considering the fact that the police officers discovered the defendant according to the category of the personnel guard of a nuclear power plant, the personal location is rare, and that the defendant was leaving a dog similar to the 112 report, the police officers, such as Nonindicted Party 1, appear to have considerable grounds to suspect the defendant as a suspect for committing a crime reported 112, and thus, the defendant constitutes a person subject to non-examination as prescribed in Article 3 (1) 1 of the Act on the Performance of Duties by Police Officers.

③ The police officer Nonindicted 1, who was tracking the Defendant, was a police officer in order to establish the Defendant in order to identify the details of the report and personal information near the Defendant. However, the Defendant’s request was made as a short-term driver, disregarding the request, and the Defendant started escape again. Accordingly, Nonindicted 1, who was a police officer, carried his clothes in his hand to stop the Defendant by continuing tracking the Defendant.

④ The Defendant, who carried clothes from Nonindicted 1 by police officers, putting Nonindicted 1 in his hand, started assault, such as the description of the facts charged, by breaking Nonindicted 1’s hand.

⑤ Police officers stated that police uniforms were put into police uniform at the time, and that the Defendant was aware that he was a police officer.

(6) Although the police officer's act of putting clothes upon the end of tracking the defendant constitutes an exercise of tangible power, it is not only an inevitable measure taken to refuse to comply with the 112 reporting crime and to stop the defendant who intends to continue escape, but also the method was deemed to have exercised tangible power to the extent that it is passive.

7) Even if the situation at the scene of the crime had already been terminated and the smooth traffic has been resumed, it is deemed that the act of putting clothes in a way that can be accepted by social norms within the minimum extent necessary for accomplishing the purpose of the non-examination, considering the fact that the defendant's act of interfering with traffic as well as animal abuse is included in the defendant's suspected crime, and the defendant suspected of being the suspect of the crime started to flee immediately to the police officer, and that the relation with the crime and the urgency of the situation is recognized, and that the act of putting the clothes in order to stop at the end of the defendant tracking the defendant who is recognized as the person subject to the non-examination.

(8) In light of the circumstances in which a police officer tried to arrest or attack a criminal defendant, the criminal defendant shall be deemed to be a quasi-flagrant offender under Article 211(2)1 and 4 of the Criminal Procedure Act in light of the fact that the criminal defendant continued to flee with the knowledge that the police officer attempted to arrest or attack the criminal defendant (a prosecutor asserts that the criminal defendant is a quasi-flagrant offender because the criminal defendant escaped with the police officer, however, it is difficult to regard the criminal defendant as a quasi-flagrant offender under Article 211(2)4 of the Criminal Procedure Act on the ground that the criminal defendant attempted to flee without the police officer's act. In such cases, it is difficult to regard the criminal defendant as a quasi-flagrant offender under Article 211(2)4 of the Criminal Procedure Act on the ground that the police officer suspended a person who intends to flee under Article 3(1) of the Act on the Performance of Duties by Police Officers

3. Conclusion

Therefore, the prosecutor's appeal on the obstruction of performance of official duties is with merit, so the judgment of the court below on this part cannot be maintained any further, and the judgment below on the violation of the Road Traffic Act (Refusal of measurement) which is concurrent crimes under the former part of Article 37 of the Criminal Act cannot be maintained any further. Thus, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the prosecutor's opinion on the obstruction of performance of official duties, and it is again decided as follows.

【2018 Highest 2704】

Since this part of the facts charged by this Court are the same as the corresponding column of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

【2018 Highest 1056】

At around 16:20 on December 17, 2017, the Defendant, upon receiving a report from 112, the Defendant, at around 16:20, escaped the said police officers, Nonindicted 1 and Nonindicted 2, who were called out, to check the Defendant’s identity and on-site conditions, in order to have the said police officers know the Defendant’s identity and on-site conditions.

In order to confirm whether or not the contents of the 112 report are true, the Defendant 1 laid the Defendant on his hand, “I see why the police officer would drive away or have committed a serious crime,” and Nonindicted 1 was pushed away on the body of Nonindicted 1, and told Nonindicted 1 Nonindicted 1’s face on the ground, with his hand, and sees Nonindicted 1’s face on the ground, and “I see, do not see, do so, see, e.g., h., h., h., h., h., h., h., h., h., h., and h., h., h., h., h. to the

Since then, while the Defendant was arrested by Nonindicted Party 1 and Nonindicted 2 and moved to patrol lanes, he spited the face of Nonindicted Party 2 three times.

Accordingly, the defendant interfered with the legitimate execution of duties by police officers on 112 reporting processing and arrest of flagrant offenders.

1. Defendant's legal statement;

1. Each legal statement of the witness, Nonindicted 1 and Nonindicted 2

1. The self-statement on Nonindicted 3’s preparation

1. Reporting on detection of a person subject to violation of the Road Traffic Act (driving), a copy of CCTV-driving photograph, a ledger using a drinking measuring instrument, CCTV-driving CCTV, a report processing case list 112, and a report on investigation (the confirmation of a report by a reporter on his/her telephone statement);

1. Article applicable to criminal facts;

Articles 148-2(1)2 and 44(2) of the Road Traffic Act (the refusal of the measurement of drinking alcohol) and Article 136(1) of the Criminal Act (the obstruction of performance of official duties)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Punishment of Punishment on Non-Indicted 1, who is heavier than that of a crime)

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 39 (1) 2, and Article 50 of the Criminal Act [The lowest sentence shall be determined by the punishment prescribed for the violation of the Road Traffic Act (Refusal of Measurement)]

1. Suspension of execution;

Article 62(1) of the Criminal Act (General Considerations in favor of the Defendant Considered as Grounds for Sentencing below)

1. Social service order;

Article 62-2 (1) of the Criminal Act

It is recognized that there seems to be no good health situation such as the Defendant’s confession and reply to the crime of violation of the Road Traffic Act (non-compliance with the measurement of noise), the fact that there is no punishment force exceeding the suspension of execution, and there is a emulation of hospitalized treatments due to depression, etc., and that there is a circumstance to be considered in the environment faced by the Defendant, such as the Defendant’s female dynamics have been extreme choice during the trial of this case, while the trial of this case is underway with his family members, and thus, they have lost their hiding.

On the other hand, the crime of obstruction of performance of official duties of this case is found to be committed by assaulting a police officer, such as spiting a police officer's face on the ground, spiting a police officer's face, spiting a police officer's spiting, and making false statements that the police officer suffered bodily injury due to a police officer's harsh acts, and thus, the quality of the crime is poor in light of the criminal law and its contents. Nevertheless, it seems that the defendant's continued to deny the part of the obstruction of performance of official duties of this case from the investigative agency to the trial court, and it seems that the defendant's failure to agree with the non-indicted 1 of the police officer so that the non-indicted 1 wants to punish the defendant, and even before, there are records of force subject to punishment once for the crime of violation of the Road Traffic Act and violation of the Road Traffic Act.

In addition, the defendant's age, career, character and conduct, environment, motive and background of the crime of this case, means, methods and results thereof, and various sentencing conditions as shown in the arguments of this case, such as the circumstances after the crime, etc. shall be determined as ordered.

Judges Kim Hyun-hwan (Presiding Judge)

Note 1) Statement of arrest of flagrant offender