In a case where the Defendant was indicted for insult on the ground that the police officer Gap's complaint was raised during the process of receiving a report on theft of the vehicle Gap's vehicle, and the police officer Gap and three police officers including Gap et al. al were able to take a bath while the police officer Gap et al. observed, the case holding that the Defendant acquitted the Defendant on the ground that it is difficult to see that the performance was performed even

In a case where the Defendant was indicted for insult on the ground that the police officer Gap was dissatisfied with the police officer Gap's complaint in the process of receiving the report on theft of the vehicle, and the police officer Gap was able to take her bath while three police officers, including Gap et al. observe the order, the case holding that the Defendant was acquitted on the ground that even if the Defendant took a bath against Gap, it is difficult to see that the Defendant did not have a public performance, on the ground that he did not have a public performance, on the ground that the Defendant was only three police officers working within the police officer working within the zone, since he was the person who was, or could have been, involved in the Defendant's speech at the time, and there was only three police officers working within the zone.

Article 311 of the Criminal Act, Article 325 of the Criminal Procedure Act

Defendant

Both parties

Kim Jae-ho et al.

Public-service Attorney Kim Sang-woo

Cheongju District Court Decision 2013Ma712 decided November 7, 2013

The guilty part of the judgment of the court below is reversed.

A defendant shall be punished by a fine of 500,000 won.

When the defendant does not pay the above fine, the defendant shall be confined in the old house for the period converted by one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Of the facts charged in the instant case, innocence against the victim Nonindicted 1 is acquitted.

The summary of the judgment of innocence against the accused shall be published.

The prosecutor's appeal on the acquittal portion of the judgment below is dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

A) The fact of insult against the victim non-indicted 1

Since only three police officers working together with the victim non-indicted 1 at the time of taking a bath against the victim non-indicted 1, the performance, one of the constituent elements of the crime of insult, is not recognized, and since the victim non-indicted 1 told the defendant as "humpinging the defendant" and led the defendant's desire, the indictment procedure constitutes a case where the crime is invalid or has no possibility of expectation of lawful act in violation of the provisions of Acts, but the court below erred in the misapprehension of relevant legal principles, which found the defendant guilty of this part of the charges.

B) The fact of insult against the victim Nonindicted 2

The Defendant did not wish the victim Nonindicted 2 as indicated in this part of the facts charged. Even if the Defendant took a bath like the description, it merely constitutes a legitimate act that does not go against self-defense or social norms, or a case where there is no possibility of expectation of lawful act. However, the lower court erred by misapprehending the relevant legal doctrine, or by misapprehending the legal doctrine.

2) The assertion of unreasonable sentencing

The punishment of the lower court (one million won of a fine) is too unreasonable.

(b) Prosecutors;

Although the Defendant used violence against the police officer’s lawful process of arresting a flagrant offender, the crime of obstruction of performance of official duties is established, the lower court erred by misapprehending the legal doctrine on the arrest of a flagrant offender, or by misapprehending the legal doctrine on the charges on the ground that the lower court’s determination of not guilty of this part of the charges was unlawful on the ground that the arrest of Nonindicted 1’s

2. Judgment on the defendant's grounds for appeal

A. As to the assertion of mistake of facts or misapprehension of legal principles

1) As to the insult against the victim non-indicted 1

A) As to the assertion that the procedure for prosecution is unlawful and invalid since it was based on the crime-causing type vessel investigation.

Unlike the fact that the investigation method, which simply provides an opportunity to commit a crime to a person who has the criminal intent or facilitates the commission of a crime, can only be allowed depending on the case where the investigation method is an investigation method, it cannot be exempt from the illegality of an investigation of a person who does not have the original criminal by inducing the criminal's criminal intent by means of deception, trick, etc., and the arrest of the criminal is illegal, and the prosecution based on such a naval investigation constitutes a case where the procedure is null and void in violation of the provisions of Acts (see Supreme Court Decision 2008Do7362, Oct. 23, 2008).

In this case, according to the evidence duly adopted and examined by the court below, it can be recognized that the defendant "I wished to the non-indicted 1 while taking the theft vehicle report phone at the time of the instant case, and find it in the earth area thereafter, and there are three police officers, including the non-indicted 1 and the non-indicted 1, and the non-indicted 1 stated "I will see why I will see it," and the defendant continued to read "I will see it, and I will see it as "I will see it, I will see it, and we will see it? I will see that I will see it? I will see that I will see we will see it?" Thus, the defendant's assertion that "I will see that I will see it? I will see that I will see we will see it," and that I will see that I will see the defendant's desire to bring about to the defendant's punishment or punishment before I want to do so."

B) As to the assertion that performance is lacking

Public performance, which is the constituent element of the crime of defamation, refers to a state in which many and unspecified persons can be recognized, and even if a fact is publicly known to one person, if there is a possibility of spreading it to the unspecified or many unspecified persons, it shall meet the requirements of public performance, but if there is no possibility of spreading it otherwise, it shall be deemed to lack of performance, and the same applies to public performance, which is the constituent element of the crime of insult (see, e.g., Supreme Court Decisions 83Do49, Apr. 10, 1984; 2008Do2090, Apr. 24, 2008).

According to the evidence duly adopted and examined by the court below and the trial court, only three police officers, including the victim non-indicted 1, etc., in the ○○ District Office, are acknowledged as having expressed the same desire as the written facts in this part of the facts charged. However, in light of the fact that it is difficult to view that the defendant's aforementioned act was conducted within the ○ District Office and only three police officers working within the ○ District Office, including the non-indicted 1, were working within the ○ District Office, and there was only three police officers working within the ○ District Office, and there was no civil petitioner and other people (6-74 pages).

C) Sub-determination

Therefore, among the facts charged in this case, the victim non-indicted 1 was found not guilty on the ground that there is no proof of crime. However, the court below erred by misapprehending the legal principles on the public performance of the offense of insult, thereby affecting the conclusion of the judgment.

2) As to the insult against the victim non-indicted 2

A) As to the assertion that there was no insult of the instant case

The court below and the court below stated that the victim non-indicted 2 explained the circumstances acknowledged by the evidence lawfully adopted and investigated by the court below and the court below to the investigation agency that "the victim non-indicted 3 expressed the victim non-indicted 2's desire to arrest the defendant's female-child room." However, the defendant explained that "the victim non-indicted 2 expressed his desire to do so" to the victim non-indicted 2 who explained the defendant's arrest process to the female-child room, and that "the victim non-indicted 3 expressed his desire to do so" to the victim non-indicted 2, who was not the victim of this case, and the defendant stated that "the non-indicted 3 expressed his desire to do so" to the victim non-indicted 2 at the time when the non-indicted 3 was arrested, and that it was hard to find the defendant's desire to do so, as stated in this part of the facts charged."

B) As to the assertion of self-defense or legitimate act

As seen later, even if the arrest of Nonindicted Party 1 by the police officer was unlawful, according to the evidence duly adopted and investigated by the court below and the court below, this part of the crime was committed against Nonindicted Party 2 by the police officer, who explained the process of arresting the Defendant to the female-friendly district within the district. Considering the specific contents and circumstances of the bath theory, the time and interval between the time of arrest and the desire, etc., the Defendant’s obsing of Nonindicted Party 2 constitutes an active harmful act beyond the extent of defense or passive resistance to escape from an unfair infringement on the body caused by illegal arrest, and it is difficult to view that the Defendant’s insulting offense in this part constitutes self-defense or legitimate act. Accordingly, it cannot be deemed that there was no possibility of lawful act solely on the ground that the Defendant was subject to illegal arrest.

C) Sub-determination

Therefore, the defendant's ground of appeal on this part is without merit.

3. Judgment on the prosecutor's grounds for appeal

A. Summary of the obstruction of performance of official duties among the facts charged

Around 00:40 on April 18, 2013, when the Defendant reported the volume of his own (vehicle number omitted) car to the ○○○○○dong-dong, Cheongju-si, Cheongju-si, by telephone, the Defendant told Nonindicted 1, who belongs to the said Gyeong-gu, to ask the Defendant about the vehicle heat, and the receipt of the report by asking the Defendant as to whether he had a vehicle heat, etc., and the Defendant was in danger of receiving the report. While Nonindicted 1, a police officer, such as Nonindicted 1, etc., of the victim’s Gyeong-gu, Cheong-gu, Cheong-gu, Cheong-gu, Cheong-gu, Cheong-gu, Cheong-gu, Cheong-gu, ○○, ○○○-dong, Cheong-gu, Cheong-gu, the Defendant expressed his desire to the victim Nonindicted 1, who was in the process of arresting Nonindicted 1 as a flagrant offender on the right side of the offense of insult, brought the victim’s duty to the front.

B. Relevant legal principles

Any person may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act). In order to arrest a flagrant offender as a flagrant offender, any person must be subject to the necessity of arrest, i.e., the necessity of escape or destruction of evidence in addition to the punishment of the act, the current and time contact of the crime, and the apparentness of the crime, and the arrest of a flagrant offender who fails to meet such requirements constitutes illegal arrest, which is not a warrant, based on legal basis. Here, whether the requirements for the arrest of a flagrant offender are satisfied should be determined based on the situation at the time of the arrest. In addition, if a prosecutor or senior judicial police officer, etc., has considerable discretion, but a prosecutor or senior judicial police officer, etc.’s judgment on whether the requirements are met is considerably unreasonable in light of the empirical rule, such arrest shall be deemed illegal (see, e.g., Supreme Court Decisions 2002Do427, Dec. 10, 2002; 201Do3682, May 26, 2011).

Meanwhile, the crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established only when the performance of official duties by a public official is legitimate. Here, lawful performance of official duties refers to cases where the act is within the abstract authority of a public official, and satisfies the legal requirements and methods regarding specific performance of official duties. In a case where a police officer tried to arrest a flagrant offender with real force despite a police officer’s failure to meet the requirements for arrest of a flagrant offender, the act of arresting a flagrant offender cannot be deemed legitimate performance of official duties. In a case where the act of arresting a flagrant offender is deemed to be illegal beyond legitimate performance of official duties. Thus, the act of injuring a police officer in the course of resisting the police officer to escape from arrest of a flagrant offender constitutes self-defense as an act to escape from the current unfair infringement of body caused by an illegal arrest (see Supreme Court Decision 2006Do2732, Nov. 23, 206)

C. The judgment of the court below

The lower court determined that the charge of obstruction of performance of official duties was established on the ground that, in light of the following circumstances: (a) even if the police at the time when the Defendant was arrested the Defendant as a flagrant offender, the crime of insult committed by the Defendant was temporary or friendly acts committed in the course of resisting the police officer’s performance of official duties (receiving a report on vehicle theft); (b) there was no exercise of physical power other than the Defendant’s humping to the police officer before the Defendant was arrested as a flagrant offender; (c) the Defendant was arrested as a flagrant offender at approximately one minute after the Defendant entered the earth; and (d) two other police officers in the earth were aware of the Defendant’s cell phone number after receiving a report on the phone number of the Defendant, and it was difficult to view that Nonindicted Party 1 was likely to flee or destroy the evidence; and (d) the police officer’s act of arresting Nonindicted Party 1 cannot be deemed lawful execution of official duties by failing to meet the requirements for arresting Nonindicted Party 1; and thus, (e) the Defendant did not constitute a crime of obstruction of performance of official duties.

D. Judgment of the court below

In light of the following circumstances acknowledged by the lower court and the court’s reasoning, i.e., ① Nonindicted 1 appears to have been aware of the Defendant’s personal information, such as the Defendant’s telephone number at the time of reporting the Defendant’s telephone call at the court below, as well as the Defendant’s name and vehicle number, and ② Nonindicted 1 was arrested the Defendant as a flagrant offender for the reason that the Defendant did not have one minute since he did not enter the ○○○ District and did not have one minute. In light of the substance, time, circumstance, and circumstances at the time of the crime, it is difficult for the police officer, who was the victim, to view that there was an imminent reason for immediately arresting the Defendant at the site of the instant case without obtaining objective judgment by the prosecutor, etc., on the ground that the police officer did not have any justifiable reason for arresting the Defendant, and thus, it cannot be deemed that the act of assault and insult of Nonindicted 1 was lawful in the process of arresting the Defendant on the ground that he did not constitute an unlawful act of arresting the Defendant.

Therefore, the prosecutor's ground of appeal cannot be accepted.

4. Conclusion

Therefore, the part of the judgment of the court below against the victim non-indicted 1 cannot be reversed for the reasons as seen earlier. The part of insult against the victim non-indicted 2 who was found guilty is bound to be reversed in relation to concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the part of the judgment of the court below which found the defendant guilty should be reversed.

Therefore, pursuant to Article 364(6) of the Criminal Procedure Act, the guilty part of the judgment of the court below is reversed, and it is again decided as follows. Since the prosecutor's appeal on the acquittal part of the judgment below is without merit, it is dismissed pursuant to Article 364(4) of the Criminal Procedure Act. It is so decided as per

On April 18, 2013, at around 00:40, the Defendant reported the volume of his own (vehicle number omitted) car by telephone at the ○○○○○dong located in Seo-gu, Seo-gu, Seo-gu, Cheongju, and received a report by asking whether Nonindicted 1, the Gyeong-gu, who belongs to the said Gyeong-gu, could be aware of a parking place under the influence of the Defendant, and the Defendant could be aware of a parking place under the influence of the Defendant, and received the report.

While the Defendant, who was dissatisfied with this complaint, was able to find the said district office, and three police officers, including Nonindicted 1, etc., were able to observe the police officer, the Defendant expressed to Nonindicted 1, the police officer, “I am, I am, I am, I am, I am, I am, I am, I am, and I am, I am.”

Accordingly, while the Defendant was arrested as a flagrant offender such as the offense of insult under Nonindicted 1, the Defendant publicly insultingd the victim Nonindicted 2, who explained to the Defendant on the grounds, etc. that the Defendant was arrested, etc., by referring to “the victim Nonindicted 2, who had explained to him on the grounds, etc. that the Defendant was arrested.”

1. Each legal statement of the lower court by Nonindicted 1 and 2 of the witness

1. The witness Nonindicted 3’s statement at the trial court

1. Each police statement of Nonindicted Party 1

1. A written statement prepared by Nonindicted 2

1. Recording records;

1. Videos made from CCTV in the ○○ District;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 311 (Contempt of Criminal Act and Selection of Fine)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

The fact that the defendant did not take any measures for the recovery of damage, such as the death of the victim up to the trial of the court, and that the victim wanted to impose a severe punishment on the defendant is disadvantageous to the defendant.

However, there is no record of punishment for the defendant as the same crime, and the crime of this case (the crime of insult against the victim non-indicted 2) is committed while the defendant was illegally arrested and there are other circumstances that can be considered in the circumstance of the crime. In addition, the defendant's age, character, character, environment, occupation, family relationship, family circumstances, and circumstances after the crime shall be determined as ordered by the disposition in consideration of the above various circumstances.

1. The charge of insulting the victim non-indicted 1 among the charges of this case

On April 18, 2013, at around 00:40, the Defendant reported the volume of his own (vehicle number omitted) car by telephone at the ○○○○○dong located in Seo-gu, Seo-gu, Chungcheongnam-gu, Cheongju, and received a report by asking whether Nonindicted 1, the victim 1, who belongs to the said ○○ District, could be aware of the Defendant’s voice under the influence of alcohol, and whether the Defendant could possess a vehicle heat.

While the Defendant, who was dissatisfied with the foregoing global conference office, was able to find the victim, and three police officers, such as the victim’s police officer, Nonindicted 1, etc., were exposed to the police officer, the Defendant made a public insult of the victim by referring Nonindicted 1 to the victim Nonindicted 1 “I am, I am, I am, I am, I am, and I am, I am, I am out of the crypt.”

2. Determination

This part of the facts charged constitutes a case where there is no proof of crime for the same reason as seen in the preceding 2-A(1)(b), and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judges Kim Sung (Presiding Judge)