Defendant

Both parties

Users (Lawsuits), Maximum Constitution (Public Trial)

Law Firm Oyman et al.

Suwon District Court Decision 201Da328 Decided February 6, 2013

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

(1) Nullity of the indictment procedure (defendant)

According to Article 262(1) of the Criminal Procedure Act, the court must notify the suspect of the fact within 10 days from the time when the court received the application for adjudication. This case was made by the Seoul High Court's order of prosecution on January 21, 2011, and the above court did not notify the suspect of the application for adjudication at the time of the lapse of 10 days after the receipt of the application for adjudication on May 31, 2010. As such, the above decision of prosecution is unlawful in violation of Article 262(1) of the Criminal Procedure Act, and its illegality is significant and obvious, and the prosecution procedure of the prosecutor following the decision of prosecution is succeeded to as a matter of course due to the serious and obvious violation of the procedure of prosecution and invalid, the court below erred by misapprehending the provisions of the Act.

(2) misunderstanding of facts or misunderstanding of legal principles (Defendant and Prosecutor)

In this case, the defendant, as the commander of the Gyeonggi Provincial Police Agency 【○○ Motor Vehicle Branch's ○○○○ Factory Co., Ltd. at the time, took measures to restrict the movement to some members of the △△△△ branch's members who mobilized riot police units for the ○○ Automobile Co., Ltd., and subsequently, confirmed identification of the members and whether arrest warrant was issued, and thereafter, during the process of arresting the members as flagrant offenders committing the crime of refusing to leave, Nonindicted 22, a lawyer, requested interview and traffic, and made them go through the request for interview and communication, and obstructed the legitimate performance of official duties of the riot police police officers, who are the police officers, such as the defendant, etc., by leading

Nevertheless, the court below rendered a conviction against the defendant. The court below erred by misunderstanding facts or by misapprehending legal principles as follows, which affected the conclusion of the judgment.

① Arrest of the Defendant’s members in the act of committing an offense was lawful.

The measures to restrict the movement of members of the riot police units as the opportunity of the instant case (hereinafter “the measures to restrict the movement of members”) merely take preventive measures to prevent a conflict between labor and management, and is merely an immediate enforcement measure based on Article 6(1) of the Act on the Performance of Duties by Police Officers, which was taken at the stage of reaching the arrest but rather at the stage of reaching the arrest. Therefore, there was no need to immediately notify the reasons for arrest, etc

Since then, after the arrival management of the members, the defendant directed the members of the riot police according to the direction of the upper part, followed the process of identifying identity of the members of the riot police and the process of confirming whether the arrest warrant was issued, notified the reason of arrest and arrested them according to the arrest procedure, such as flagrant offenders. At the time, riot police including the defendant was legally performing the duty of arrest

(2) The victim is a flagrant offender of the crime of obstruction of the performance of official duties that obstructs arrest and defense, and the arrest of the victim was lawful, and the victim's request for meeting and communication was not permissible.

i) The victim is not entitled to meet and communicate with the victim.

The victim requested an interview with Nonindicted Party 1 that he/she would exercise the right to contact and communicate with the arrested member Nonindicted Party 1. However, Nonindicted Party 1 was aware of the fact that he/she was arrested as a flagrant offender in the crime of non-compliance with the eviction and did not have expressed his/her intent to receive assistance from the defense counsel by requesting the victim to appoint the defense counsel. The victim was merely a person who intends to be a voluntary and unilateral defense counsel without knowing his/her personal information about Nonindicted Party 1. Thus, the victim did not have a position to exercise the right to contact and communication under Article 34 of the Criminal Procedure Act as a defense counsel.

ii) The victim’s exercise of the right to meet and communicate deviates from the limitation of the defense counsel’s exercise of the right to meet and communicate.

Even if a person who intends to be a defense counsel is granted the right to meet and communicate with the victim, the right to meet and communicate with the victim shall be exercised to the extent that it does not infringe the original purpose of the

The Defendant’s arrest against Nonindicted 1 was lawful performance of official duties in accordance with the procedure prescribed in the Criminal Procedure Act, such as notifying the U.S. Principles. At the time, the labor union and the private side had no real confrontation or physical conflict, but at any time, it was urgent for riot police officers to immediately transfer Nonindicted 1 to the outside at the site, and thus, there was a need for riot police officers to immediately transfer Nonindicted 1 to the outside. In the event of suspension of the escort of Nonindicted 1 and permission for meeting, it would not only go against the original purpose of the arrest system to secure a new illness by carrying the arrested suspect in a certain place. In fact, it was impossible for the defense counsel who guaranteed the confidentiality of the police escorting vehicle to meet. Under such circumstances, the Defendant’s exercise of the right to interview and communication was not allowed to deviate from the limit.

On the other hand, the defendant explained the victim's on-site situation in advance and notified the victim of his/her interview to meet in another place.

iii) The act of arresting the victim who is a flagrant offender committing the obstruction of performance of official duties is lawful.

Therefore, the victim was not a person entitled to exercise the right of interview and communication as a defense counsel, and even if the victim's right of interview and communication is acknowledged, the victim's act of obstructing arrest and communication to Nonindicted 1 constitutes an obstruction of performance of official duties, which deviates from the limitation of the right of meeting and communication, and thus, the victim's act of refusing meeting and communication to Nonindicted 1 and arresting the victim as a flagrant offender in the crime of obstruction of performance of official duties is legitimate performance of official duties within the scope of duties concerning the restraint of human body. It cannot be deemed that the defendant abused his official authority to arrest the victim or interfere

(3) The defendant has no intention to abuse of authority.

Even if it is judged that the arrest act of domestic union members and victims is not legitimate, the defendant is a field responsible manager who shall work at the urgent demonstration site at the time while engaging in the duties of maintaining the safety and order of the union members at the same time, and therefore there was no awareness that the union members were arrested at the above time, and there was no awareness that the union members were arrested in accordance with the guidelines of the upper court.

In addition, the upper court’s order to strictly cope with the obstruction of performance of official duties at the time was issued. However, at the time of the arrest of Nonindicted Party 1, the victim did not object to the non-indicted 1’s non-indicted 1’s non-indicted 1’s non-indicted 1’s non-indicted 1’s non-indicted 1 or the establishment of the victim’s act of arresting Nonindicted Party 1. As such, the Defendant did not think that the victim requested an interview in order to point out the problem of the victim’s act of arresting Nonindicted Party 1, and it was merely arrested the victim as an offender in the crime of obstruction of official duties in accordance with the above upper court’s order to judge the victim’s act as an act of interference with arrest and defense for the purpose of meeting and to take strict measures, and thus

(3) Unreasonable sentencing (Defendant)

Even if the defendant is found guilty of domestic affairs, the punishment of the court below (two months of imprisonment, one year of suspension of qualification, two years of suspended sentence for imprisonment) is too unreasonable.

2. Judgment on the ground that the indictment procedure invalidation is invalidated

The case of application for adjudication does not require oral argument, and is not open to the public, barring any special circumstance. In principle, relevant documents and evidence cannot be perused or copied during the hearing of the case of application for adjudication (Articles 37(2), 262(3), and 262-2 of the Criminal Procedure Act). Whether to allow an applicant for adjudication or a suspect to participate in the hearing belongs to the court’s discretion (Article 24(2) of the Regulation on Criminal Procedure). As such, the case of application for adjudication is a procedure for which a suspect’s participation is not guaranteed, and no appeal is allowed against the decision made by the financial court following the hearing (Article 262(4) of the Criminal Procedure Act).

In light of the purport of the relevant provisions, even if the arbitration court conducted a trial without notifying the defendant of the fact of application for adjudication as if the defendant asserts, and made the decision of the indictment of this case, it is difficult to say that the defendant infringed on the right to participate in the procedure that could have been exercised by the defendant in the procedure of application for adjudication of this case, and the degree of defects is not significant. Moreover, the prosecution by the public prosecutor following the decision of the court of finance which is not allowed to object to

Therefore, this part of the defendant's argument is without merit.

3. Judgment of misunderstanding of facts or misunderstanding of legal principles (Defendant and Prosecutor)

A. Whether arrest is lawful for the union members

(1) Requirements for administrative immediate enforcement based on Article 6(1) of the Act on the Performance of Duties by Police Officers

Article 6(1) of the Act on the Performance of Duties by Police Officers provides that “If a police officer deems that a criminal act is about to be committed in front of the police officer, the police officer may issue a warning to the person concerned to prevent the criminal act, and if it is urgently required due to such act to cause danger and injury to human life and body, or grave damage to property, the police officer may restrain such act.” The part concerning the restraint of the police officer in the above provision is a provision concerning the immediate administrative enforcement of the police for the prevention of the crime. Administrative compulsory enforcement is exceptionally permissible within an inevitable extent in light of its nature, to the extent that it is inevitable to achieve the administrative purpose. Thus, the police officer’s restraint measures under the above provision should be carefully and strictly interpreted so that such measures can be exercised only to the minimum extent that it is inevitable (see, e.g., Supreme Court Decision 2007Do9794, Nov. 13, 2008).

(2) Determination

The lower court determined that, in light of the situation where the riot police units at the time were unable to move the members of Nonindicted 2, Nonindicted 3, 4, Nonindicted 5, Nonindicted 6, Nonindicted 7, and Nonindicted 1 (hereinafter “ arrested members”), the number of mobilized riot units, Nonindicted 2, Nonindicted 3, and Nonindicted 4’s demand for notification of the reason for arrest to the commander of the riot police units and the attitude of Nonindicted 4 and Nonindicted 6, the time when the arrested members were unable to move surrounded by the police police units, the captain’s response to the demand for notification of the reason for arrest of the victim, etc., on the premise that the act of the arrested members could not move to the police units upon their failure, and that it constitutes an imminent arrest, and that the act of the members of the arrested members could not move to the police units upon their failure, or that there was considerable time after the arrest, and that there was considerable concern that the act of the members of the arrested members would not have occurred or might not have occurred during the time when they were arrested.

The reasoning of the court below is as follows: ① Nonindicted 5, 6, and 7, among arrested union members, came out from the factory through the door of the bus gettinger in order to gather a personal check held at 11:00 outside the ○○ Automobile △△△ Factory at the time; ② Nonindicted 2 and 3 were merely trying to consult about the issue of bringing rice and corrosion in the parking lot for the bus gettinger, and Nonindicted 4 was merely a prior delivery of the factory while carrying out the business outside the factory, not from the factory, and from the fact that Nonindicted 4 was merely a prior delivery of the factory outside the factory; ② On the other hand, it appears that there was no urgent situation to the extent that conflicts between the two sides, such as the private survey staff and the staff at the arrest site, etc., were not observed, and thus, the court below’s determination that the act of arrest and arrest of the union members at the time of this case constitutes legitimate and justifiable grounds for failing to comply with the legal principles as to administrative measures as to arrest and arrest of the union members at the time of this case.

B. Whether the victim's right to meet and communicate is recognized

(1) The meaning and scope of the right to interview and communicate, including a defense counsel

Article 89 of the Criminal Procedure Act provides that "a defendant detained may meet with another person within the scope of the Act," and Article 34 of the Criminal Procedure Act provides that "a person who intends to be a defense counsel or a person who intends to be a defense counsel may meet with a criminal suspect or a criminal suspect detained and receive documents or articles, in addition to cases where Article 209 applies mutatis mutandis to a criminal suspect arrested or detained." This provision of the Criminal Procedure Act provides that "a person who is arrested or detained shall have the right to prompt assistance of a defense counsel" under the main sentence of Article 12 (4) of the Constitution provides that "the person who is arrested or detained shall have the right to receive assistance of a defense counsel shall have the right to prompt assistance of a defense counsel." In order to realize the purpose of guaranteeing the right to receive assistance of a defense counsel as one of the fundamental human rights of a criminal suspect or a person who intends to be a defense counsel, and at the same time, there is no provision that directly restricts the right to contact and communicate with a defense counsel." Thus, the right to have

However, arrest or detention under the Criminal Procedure Act takes place in order to prevent escape or destruction of evidence by a suspect or a criminal defendant who has a reasonable ground to suspect that he/she committed a crime and to guarantee his/her appearance (Articles 70, 200-2, and 201), and the right to interview and communicate by a defense counsel against the criminal defendant or the criminal suspect who is physically detained shall be exercised within the scope that does not infringe on the original purpose of the above physical restraint system. The exercise of the right to interview and communicate by a defense counsel against the criminal defendant or the criminal suspect who deviates from such limitation shall not be permitted since it does not constitute the exercise of the right to interview and communicate by a defense counsel. However, in recognizing that the right to interview and communicate by a person under physical restraint deviates from the above limitation, since the right to receive assistance by a defense counsel is in a relation with the right to receive assistance by a person under physical restraint who is guaranteed as one of the fundamental rights under the Constitution, the right to receive assistance by a defense counsel shall be exercised carefully so as not to infringe on the essential contents of the right to receive assistance by a defense (see, etc.

(2) Whether the victim was in a position to exercise the right of meeting and communication

On June 22, 2009, the chairman of the Labor Relations Commission in charge of the business of the Dogdong-gu, ○○○ Automobile Branch, which was the head of the Dongdong-gu, Seoul Metropolitan City, asked the defendant to take appropriate measures to ensure prompt meeting of counsel in the event of a large amount of performers caused by the strike at the ○○ Motor Vehicle Branch, etc., and accordingly, the victim arrived at the site immediately after six members, such as Nonindicted 2, etc. are unable to move together, and raised an objection to the illegality of the arrest procedure of the above members under the premise that he/she was in the legal assistance of the union members as a lawyer. Since the victim again was arrested by the same method, the victim was verbally requested by the defendant to meet Nonindicted 1, who was arrested as the attorney, and the victim did not have the right to appoint the defense counsel at the request of Nonindicted 1, who was not aware of the intention of appointment of the defense counsel at the above request, and the victim did not have the right to request the defense counsel at the first time during the process of arrest, and did not have the right to request.

On the other hand, there is no ground or reason to acknowledge the right of interview and communication of a person who intends to be a defense counsel only when the suspect explicitly expresses his/her intention to have the assistance of a defense counsel. If such interpretation is limited, there is room to conclude that the right of interview and communication of a person who intends to be a defense counsel can only be established only when the investigative agency has followed the procedure to confirm the intention of the suspect arrested or detained in advance. In such a case, there is a risk that the establishment of the right of interview and communication of a defense counsel may ultimately be affected by the intention of the investigative agency, and such interpretation theory cannot

In this regard, even if there was no explicit intent to appoint a defense counsel of Nonindicted 1 arrested, the judgment of the court below that recognized the victim as having the right to contact and communicate with the victim is just, and it cannot be said that there was a mistake of fact or a misunderstanding of legal principles as to the right to contact and communicate with the defense counsel. Thus, the defendant and prosecutor'

C. Whether the victim's crime of obstruction of performance of official duties is established (whether it deviates from the limitation of the exercise of meeting and traffic rights)

(1) Conditions on the premise of the establishment of the crime of obstruction of performance of official duties

The crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established only where the performance of official duties by a public official is legitimate. Here, legitimate performance of official duties refers to not only the abstract authority of a public official, but also the case that satisfies the legal requirements and methods for specific performance of duties. In a case where a police officer intends to arrest a flagrant offender due to his/her real force even though the police officer failed to meet the requirements for arrest of a flagrant offender, it cannot be deemed legitimate performance of official duties (see Supreme Court Decision 2011Do3682, May 26, 201).

(2) Determination

The court below held that, despite the continuous objection to the illegality of the arrest procedure, the victim at the time did not have any urgent need to immediately transfer Nonindicted Party 1 to the outside or destroy evidence at the scene of the crime, since the victim met as soon as possible and it seems necessary to accurately grasp the contents of the case and take measures to follow-up measures in the situation where the union members are being arrested as soon as possible. On the other hand, the court below held that, on the other hand, Nonindicted Party 1’s request for the obstruction of the performance of the police duty cannot be seen as a legitimate defense counsel’s exercise of the defense counsel’s right to request the arrest, considering the following: (a) there was no urgent need to immediately transfer Nonindicted Party 1 to the outside at the time of the arrest of Nonindicted Party 1; and (b) there was no need to have the victim escape or destroy evidence in the scene of the crime by occupying the escort vehicle in combination with other union members; and (c) even if meeting was difficult at the scene, the defendant could not be seen as having interfered with the police’s exercise of right at the time of the right to request for arrest.

(4) Examining the reasoning of the lower court, the Defendant’s act of illegally arresting the Defendant at the time of the arrest of Nonindicted Party 1, as well as the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, i.e., the victim’s act of not having complied with the request of Nonindicted Party 1, but not having complied with the request of Nonindicted Party 2, was likely to cause physical collision. However, at around 11:0 on the day of the instant case, a large number of employees, including Nonindicted Party 2, etc., were arrested by police officers at the time when they were actually arrested. As such, the Defendant’s act of not having complied with the request of Nonindicted Party 1 to arrest the Defendant at the time and at the time and place of the instant investigation, was carried out by the Defendant’s defense counsel at the time and at the time of the arrest of the Defendant, and the Defendant did not appear to have any other reason to view that there was a need to directly arrest the Defendant as an attorney-at-law’s act of failing to contact with the Defendant.

As above, the defendant, as a police officer performing duties concerning the restraint of human body, arrests the victim who duly requests meeting and communication as an attorney-at-law, as an offender in the crime of obstruction of performance of official duties against the arrest and communication of Nonindicted Party 1. Therefore, it is reasonable to view that the defendant abused his authority to arrest the victim and at the same time interfered with the exercise of the victim'

Therefore, the judgment of the court below that made the same conclusion is just, and it cannot be said that there were errors by misunderstanding facts, or by misunderstanding the legal principles on the limitation of meeting and communication right and the obstruction of performance of official duties, and thus, this part of the defendant

D. Intentional intent of abuse of authority

The lower court, on April 1, 198, found that the Defendant worked for the police for at least 20 years since the commencement of police service on the following grounds: (a) from July 24, 2008 to July 24, 2008, was responsible for the duties of the field commander of the Gyeonggi Provincial Police Agency △△△ combat police unit; (b) the Defendant appears to have been aware of the procedures for personal arrest under the Criminal Procedure Act; (c) as the Defendant was involved in the above arrest process, it appears that the Defendant could have sufficiently known that the victim, who was an attorney, requested meetings of the arrested union members; and (d) even if the victim requested meetings and did not go through direct violence to the body of the front party members at the time of the arrest, or physical force of the escorting vehicles, etc., and there was no objective circumstance to view that the Defendant’s request for meetings does not constitute an act of interference with the police officer’s arrest and delivery; and (d) the Defendant did not immediately request for an interview with the victim’s defense counsel to whom Nonindicted Party 1 was requested for arrest and delivery.

In a close examination of the records of the court below and the court below compared with the various evidences adopted through legitimate examination of evidence, the judgment of the court below is just, and there is no error of misunderstanding the facts, and the defendant's additional arguments in the court below did not arrest the victim as a flagrant offender of the obstruction of performance of official duties, i.e., the defendant's assertion that the victim is in accordance with the guidelines of the upper court is merely a mere confirmation of the principle to strictly cope with the obstruction of performance of official duties. Specifically, the defendant's order to arrest the victim as a flagrant offender at the time of the instant case under the responsibility of the defendant as an on-site commander, and therefore, this part of the defendant and the prosecutor's assertion is

4. Judgment on the assertion of unfair sentencing (Defendant)

(1) Since the Defendant was appointed as a police officer in 1988, the Defendant had worked in good faith for 25 years and had no criminal record, and at the time of the assembly in this case, de facto arrest of police officers under the name of so-called "highness management" has been conducted in practice. During that process, it seems that there was no clear distinction between "highness management" as a measure of administrative immediate enforcement and "Arrest" under the Criminal Procedure Act, and therefore, it is difficult to remove illegal arrest of the members of this case solely due to the Defendant's personal mistake, and it is difficult for the Defendant to make a reasonable judgment while maintaining the coolingness at the time of the arrest of the victim. The fact that the Defendant did not commit the crime of this case for the purpose of receiving unfair solicitation or personal benefit is an element for sentencing favorable to the Defendant.

(2) However, the Defendant, as a police officer, is in charge of duties concerning the restraint of the human body, is responsible for complying with the procedures under laws, protecting the freedom and rights of the people, and performing his/her best duty imposed for the maintenance of public order in society. Nevertheless, the Defendant resisted illegal arrest procedures, and arrested the victim as a flagrant offender in the crime of obstruction of the performance of official duties.

The issue of whether a person satisfies the requirements for arrest of a flagrant offender shall be determined based on the situation at the time of arrest, and the judgment of the investigative body on this issue may have a considerable discretion (Supreme Court Decision 2011Do3682 Decided May 26, 201). However, at the time of the instant case, the Defendant was well aware of the cause, circumstance, etc. of the victim’s resistance to riot police members including the Defendant, and even though the Defendant provided the above reasons, the Defendant was arrested as an attorney-at-law demanding compliance with due process of law, such as meeting and traffic, thereby practically infringing on the right to receive assistance of counsel and counsel prescribed by the Constitution and law, and thus, the liability for the crime cannot be strictly asked.

In addition, the victim was arrested and detained for not less than 36 hours due to such erroneous enforcement of law by the defendant, and the freedom of body was infringed directly due to the arrest and detention of the victim, and the victim was investigated and prosecuted for the obstruction of performance of official duties, etc., and was under criminal trial until the fourth year from the time of the occurrence of the case, and the victim suffered considerable physical and mental pain in the process, and there seems to have been considerable damage to the reputation appraisal as a lawyer.

Nevertheless, it is difficult to see that the Defendant was able to perform his duties at the time until the time of the trial, and denies the crime, so it is difficult to see that the circumstances of the Defendant’s opening are obvious, and even if the Defendant agreed with the victim or endeavored to recover the damage, it does not peep.

(3) The lower court appears to have determined the sentence in light of such overall circumstances, and even considering all the sentencing conditions shown in the records and arguments of this case, it does not seem that the lower court’s sentence against the Defendant is too unreasonable.

5. Conclusion

Therefore, since the appeal by the defendant and the prosecutor is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Long-term (Presiding Judge)