In a case where a police officer without presenting an identification card, but the prosecutor was aware that the reason for the inspection is about a criminal act, whether such questioning constitutes an unlawful performance of official duties (negative)

Article 3(4) of the Act on the Performance of Duties by Police Officers (hereinafter “the Act”) provides that a police officer shall present his/her identification card when he/she intends to conduct an autopsy. Article 5 of the Enforcement Decree of the Act on the Performance of Duties by Police Officers provides that a police officer’s identification card is a police officer’s identification card. In full view of the background leading up to an autopsy, the police officer’s uniform at the time of an autopsy, the situation at the time of an autopsy, and whether the Defendant requested the presentation or verification of his/her identification card, the fact that the inspector was a police officer and the reason for inspection was sufficiently known to the Defendant, cannot be said to be an illegal performance of official duties.

Article 136(1) of the Criminal Act; Article 3(1), (3), and (4) of the former Act on the Performance of Duties by Police Officers (Amended by Act No. 12600, May 20, 201); Article 5 of the Enforcement Decree of the Act on the Performance of Duties by Police Officers;

Supreme Court Decision 2004Do4029 Delivered on October 14, 2004

Defendant

Defendant

Suwon District Court Decision 2014No97 decided May 29, 2014

The appeal is dismissed.

We examine the grounds of appeal.

1. The facts charged in this case

On February 21, 2013, at 03:10 on February 21, 2013, the Defendant heard the circumstances that Nonindicted Party 1 and Nonindicted Party 2, a police officer of the Suwon Police Station, who was called out after receiving a report on the support of the guard company that there was a drinking problem, had a drinking value from the female employees and the head of the brigade, and there was a room for the Defendant, and Nonindicted Party 1’s female employees and the head of the brigade. The Defendant told Nonindicted Party 1 to stop in front of the Defendant, who was willing to come out of the restaurant, and “Iskh, Iskn, Iskn? Iskn? Iskn? Iskn't see that Iskn's head? Iskn? Iskn's body? Iskn's body? Iskn't kn't kn't kn's body? I amn't kn't the right body of the Defendant.

At around 04:10 on the same day, the Defendant continued to 04:10 on the same day, the police officer Nonindicted 3, who was a police officer in charge of the patrol box, arrested Nonindicted 2, who was the victim, and reported Nonindicted 2, who was in charge of arresting the Defendant’s handets, and was in charge of drinking Nonindicted 2’s chests twice, and led Nonindicted 2, who was in charge of drinking, carried the bridge of Nonindicted 3, who was satching, was satched, and was sated one time, and took the face twice.

In the above manner, the Defendant interfered with the legitimate performance of official duties in relation to the handling and withdrawal of 112 Reports by the victims, the maintenance of order, criminal investigations, and the prevention and suppression of crimes, and at the same time, inflicted injury on Nonindicted 1, 2, and 3, such as salt ties, tensions, etc. requiring three-day medical treatment.

2. The gist of the Defendant’s grounds of appeal is as follows.

① In a case where the Defendant 1 was frightened, frightened, or frightened on one occasion, the Defendant did not immediately exercise the force of force, such as frightening bat, etc., in the process of punishing physical fighting, and the police Nonindicted 2, who was behind the Defendant, was frightened with his body in the process of punishing the body. However, the lower court erred by disregarding the testimony, etc. of the relevant persons, and by finding the Defendant disadvantageously.

② The act of infringing on the physical freedom by preventing the Defendant from going beyond the mere demand of suspension at the time cannot be deemed to be an “suspension” which may be permitted as accompanied by a sworn questioning under the Act on the Performance of Duties by Police Officers (hereinafter “the Act”). In particular, since police officers dispatched failed to present their identification cards or to disclose their affiliation, name, etc., thereby violating Article 3(4) of the Act, the above act of police officers constitutes illegal arrest and detention, not a lawful official duty, and the act of causing bodily harm to the police officers in order to escape from such unlawful performance of official duty is an act that is a justifiable act or that does not go against social rules.

③ The Defendant, while under the influence of alcohol, only inflicted an injury on a police officer during the process of attempting to escape from the state of confinement while illegally arrested and detained at least one hour at a police box, and such act constitutes a justifiable act.

3. Judgment on the grounds of appeal

A. We examine the allegation that the lower judgment erred by mistake of facts.

Since the fact finding and the selection and evaluation of evidence conducted on the premise thereof belong to the exclusive authority of the fact-finding court unless they exceed the bounds of the principle of free evaluation of evidence, the argument that the court below acknowledged facts contrary to the evidence is merely disputing the fact finding which belongs to the exclusive authority of the court below, and thus,

Furthermore, even if the record is examined, the lower court did not err by mistake of facts as alleged by the Defendant.

B. We examine the victims' assertion that their actions are not legitimate execution of official duties.

(1) Article 1(1) of the Act provides that "The purpose of this Act is to provide for matters necessary for police officers (limited to national police officers; hereinafter the same shall apply) to perform their duties for the protection of the freedom and rights of citizens and the maintenance of public order in society," and Article 3(1) of the Act provides that "a police officer may stop and ask questions to a person who has a considerable reason to suspect that the person has committed, or is about to commit, a crime, or a person who is deemed to have knowledge of a crime already committed or about to commit", and Article 1(3) of the Act provides that "a police officer may investigate whether the person is in possession of a deadly weapon when questioning the person provided for in paragraph (1)."

In full view of the aforementioned purpose, provisions, structure, etc. of the Act, determination of whether a police officer falls under a person subject to questioning under Article 3(1) of the Act shall be made according to an objective and reasonable standard as to whether a person subject to questioning is a person subject to questioning based on the specific circumstances at the time of questioning, as well as the information and professional knowledge, etc. However, it cannot be said that a person subject to questioning without questioning is required to be suspected of having been arrested or detained under the Criminal Procedure Act. In order to ask questions to a person subject to questioning, the police officer may suspend the person subject to questioning in a way that can be accepted by social norms to the minimum extent necessary for accomplishing the purpose (see, e.g., Supreme Court Decisions 2010Do6203, Sept. 13, 2012; 2011Do1399, Feb. 27, 2014).

Meanwhile, Article 3(4) of the Act provides that a police officer shall present his/her identification card when he/she intends to conduct an autopsy, and Article 5 of the Enforcement Decree of the Act provides that a police officer's identification card indicating his/her status is a public official of the police officer. In full view of the circumstances where a police officer conducts an autopsy, the police officer's uniforms at the time of conducting an autopsy, and whether the defendant requests presentation of a public official identification card or verification of his/her status, etc., in cases where it appears that the prosecutor is a police officer and the defendant sufficiently knows that the reason for inspection is about a criminal act, it shall not be deemed that the non-examination is illegal performance of official duties (see Supreme Court Decision 2004Do4029, Oct. 14, 2004).

(2) According to the reasoning of the lower judgment and the evidence duly admitted by the first instance court, the first instance court’s reasoning and the lower court: ① Nonindicted 1 and Nonindicted 2, who was called to the scene after receiving 112 report, were found to have been female employees and vagabonds without paying the drinking value; and Nonindicted 1’s female employees and vagabonds were viewed to have been waiting for the face of the suspension to be taken by the female employees; but Nonindicted 1 attempted to ask questions to the Defendant; however, Nonindicted 1, who was going to the front door of the Defendant without questioning, was going to the front door of the Defendant; ② Nonindicted 1, who tried to explain the situation again; ③ Nonindicted 1’s desire to take care of the Defendant’s bridge to prevent the Defendant from committing an offense of obstruction of the performance of official duties; ③ In so doing, Nonindicted 2, who used the Defendant’s shoulder to the extent that he would have been aware of the Defendant’s body and the right type of the Defendant’s arrest to the least extent necessary in light of social norms.

Furthermore, according to the evidence, Nonindicted Party 1 and Nonindicted Party 2, who was called up at the time, was the police uniform, and the Defendant did not demand the above police officers to present an identification card, and attempted to leave out of the public bath and used the above police officers to assault the above police officers. In light of the legal principles as seen earlier, it seems that at the time, the Defendant was aware that the above Nonindicted Party 1, etc. were the police officers and the reasons for inspection were all the criminal acts with respect to him. Thus, in such a situation, it cannot be deemed that the above police officers did not present an identification card to the Defendant or disclose his position.

Therefore, we cannot accept all the defendant's assertion that the act of the above police officers constitutes an illegal arrest and detention as an unlawful performance of official duties, which does not constitute a legitimate act by assaulting the victims or go against social norms.

(3) The fact-finding and judgment of the court below to the same purport are justifiable, and they do not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on political party acts, arrest and detention, and Article 3

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)