[1] Whether the judicial police assistant should give notice of the principle of disturbance to the case of arrest or emergency arrest of a flagrant offender (affirmative) and the time of notice

[2] The case holding that a police officer's lawful performance of duties concerning emergency arrest duties by a police officer is hindered in the process of restraint or subsequent without delay, in a case where a police officer notified only a part of the information notified under the U.S. Principles and inflicted an injury on a police officer who seeks to carry out a procedure for identification, who tried to carry out a procedure for identification, was involved in a spacife and display a glass view, and the police officer'

[1] Article 12(5) of the Constitution, Articles 72 and 213-2 of the Criminal Procedure Act / [2] Article 12(5) of the Constitution of the Republic of Korea, Articles 72 and 213-2 of the Criminal Procedure Act, Articles 136 and 144 of the Criminal Act

[1] Supreme Court Decision 99Do4341 delivered on July 4, 2000 (Gong2000Ha, 1851)

Defendant

Defendant and Prosecutor

Attorney Kang Han-hee

Daegu High Court Decision 2007No233 Decided August 30, 2007

The judgment of the court below is reversed, and the case is remanded to Daegu High Court.

1. We examine the Prosecutor’s grounds of appeal.

Article 12(5) of the Constitution declares the principle that “no person shall be arrested or detained unless he is notified of the grounds for arrest or detention and that he/she has the right to receive assistance of counsel.” Article 72 of the Criminal Procedure Act provides that “no person shall be arrested or detained unless he/she gives the accused a summary of the crime, grounds for detention and an opportunity to defend himself/herself, or gives him/her an opportunity to defend himself/herself.” This provision applies mutatis mutandis to cases where a prosecutor or a judicial police officer arrests a flagrant offender under Article 213-2 of the same Act or receives a flagrant offender from the general public. Thus, it is apparent that this legal principle applies to cases of emergency arrest as well as cases of non-flagrant offender, and such notification is equally applied to cases of emergency arrest. In principle, prior to the entry into the exercise of practical force for arrest, or in cases where he/she fails to attach him/her to force or put him/her into force against a criminal suspect or a person who drives him/her without delay or pressure (see Supreme Court Decision 90Do3094).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its holding, and held that if three police officers, such as non-indicted 1, etc., enter the above telecom with their wife and confirmed that the defendant was familiar with the above telecom, it is hard to view that the defendant had a right to visit Turkey at 1st time to visit the new wall and to arrest the defendant, and the police officers who intend to arrest the suspect pursuant to the provisions of the Criminal Procedure Act have already started the exercise of the right to visit Turkey, and thus, if the defendant did not have a legitimate right to visit the police officers before entering the above decomtonation, i.e., to arbitrarily leave the above exercise of force, or under the consent of the defendant, it is difficult to give the defendant an opportunity to defend himself/herself, as long as it is difficult to view that the defendant did not have a right to request the police officers to visit the new wall and present the principle of due process to ensure that he/she did not have a legitimate right to visit the defendant, then it should be seen that the defendant did not immediately start to exercise the right to visit the defendant's.

However, this part of the judgment of the court below is not acceptable.

As acknowledged in the court below's facts, if police officers confirmed that the defendant was living together with his wife and arrested the defendant for fear of escape or self-injury, and asked to produce identification card, and the defendant alleged that the defendant himself was a son non-indicted 2's driver's license, it shall be deemed that the police officer should first confirm whether the other party to arrest the defendant himself/herself and then notify the so-called "non-indicted 2" principle. If the police officers first arrest the defendant and notify the non-indicted 2 without confirming whether the other party is the defendant or non-indicted 2, it may lead to the arrest of the person who is not the actual suspect, and in this case, human rights infringement may occur far more than the human rights protection that is obtained from the prior notification of the non-indicted 2's non-indicted 2. Therefore, the police officer's act of this case without notifying the whole non-indicted 2's identification procedure may not be deemed unlawful.

In addition, according to the facts acknowledged by the court below, the defendant changed the attitude of the police officers to have his fingerprints confirmed, and took care of the view so that the police officers could not see it, and the police officers were able to see it. The police officers were able to boom the body between 20 minutes and 30 minutes for the purpose of suppressing the defendant, and the police officers were able to boom the suspect against violence. The police officers were at the stage of suppressing the suspect against this violence into the real force. When the police officers were at the stage of suppressing the suspect against it, the police officers should be deemed to be blick without delay after the pressure or restraint. Therefore, it cannot be deemed that the emergency arrest officers of this case were legitimate public duties. Accordingly, if police officers were flick sense of the defendant's flag or flick damage to the defendant during the process of suppressing the defendant by leading the defendant, it can be deemed that the police officers interfere with the execution of their duties.

Ultimately, the judgment of the court below is erroneous in the misapprehension of legal principles as to emergency arrest or obstruction of performance of official duties, which affected the conclusion of the judgment. The prosecutor's appeal pointing this out is with merit.

2. We examine the Defendant and state appointed defense counsel’s grounds of appeal.

Examining the adopted evidence of the court of first instance maintained by the court below in light of the records, it is just that the court below recognized that the defendant committed an act listed in paragraph 4.C. as stated in the judgment of the court of first instance, and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal, and the defendant's self-defense assertion is merely a premise of misconception of facts against the rules of evidence as alleged in the ground of appeal, and it cannot be accepted as well. In addition, the argument that the punishment is too heavy is not a legitimate ground of appeal.

3. Therefore, the Defendant’s appeal is without merit, and the prosecutor’s appeal is with merit, and therefore, the part of the judgment below which affected the special obstruction of performance of official duties should be reversed. As to this part of the judgment below, the court below found the Defendant guilty of the crime of violation of the Punishment of Violences, etc. Act (a collective crime, deadly weapon, etc.), which included the facts charged, and rendered a single sentence against the Defendant by combining the remaining crimes related to the concurrent crimes, the judgment on the Defendant’s appeal is not required

Therefore, all the judgment below against the defendant is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)