[1] In a case where police officers, including the Defendants, released the Defendants without properly investigating the Defendants, such as requiring them to prepare a letter of voluntary action instead of arresting the flagrant offender or return some gambling funds confiscated without the prosecutor’s direction, the case holding that the lower court erred by misapprehending the legal doctrine or by misapprehending the legal doctrine regarding the establishment of a crime of abandonment of duties against the Defendants

[2] Where a judicial police officer arrests a flagrant offender, and in the case of an emergency arrest, whether it is necessary to give notice of the principle of disturbance (affirmative) and the time of notice

[3] In a case where police officers, including the Defendants, prepare a false statement of arrest and a written confirmation that they notified the grounds for arrest and the right to appoint counsel when arresting the suspects as flagrant offenders or preparing a written arrest of flagrant offenders, the case holding that the court below erred by mistake of facts in the judgment below which made a different judgment, even though it should be seen that the Defendants had a criminal intent to prepare a false official document

[1] In a case where police officers including the Defendants: (a) let the 17 persons suspected of gambling arrest as a flagrant offender prepare a document of voluntary action instead of a letter of arrest of a flagrant offender; (b) released them without any proper investigation; (c) did not report the release of a flagrant offender to the prosecutor; (d) did not prepare a document stating the date and time and reason for the release; and (e) did not keep the record; (b) returned some gambling funds seized without the prosecutor’s direction without any seizure protocol and list; and (c) confirmed the identity theft of some gambling suspects and the history of punishment against gambling-related crimes without any additional investigation, the case holding that the lower court erred by misapprehending the legal principles or by misapprehending the legal principles, or by misapprehending the legal principles of misunderstanding the facts, on the ground that it is reasonable to view that the Defendants did not merely neglect their duties but intentionally neglect or waive their investigation duties without any justifiable reason.

[2] In a case where a judicial police assistant arrests a flagrant offender as a flagrant offender, he/she must be given an opportunity to defend himself/herself by stating the summary of the crime, reasons for detention, and the appointment of a defense counsel. This legal principle applies to the case of emergency arrest as well as the case of an unflagrant offender. Such notification must be made in advance before entering the exercise of the real force for arrest. However, such notification must be made in principle in the course of attaching or suppressing the suspect by driving away the suspect, or by suppressing the suspect against violence. If it is not done, it should be done without delay after setting up or suppressing the suspect.

[3] In a case where police officers including the Defendants arrested four suspects as flagrant offenders or prepare a letter of arrest of a flagrant offender without notifying the grounds for arrest and the right to appoint a counsel, the case holding that the lower court erred by misapprehending the legal principles on the preparation of a false public document, although it should be deemed that the Defendants had the criminal intent to commit a crime against the preparation of a false public document, and that “the arrest of a flagrant offender after notifying the grounds for arrest and the right to appoint a counsel, etc. for the arrest of a flagrant offender,” and 4 false written confirmations stating that “the arrest of a flagrant offender would have been arrested after arresting a flagrant offender as a flagrant offender,” were prepared

[1] Article 122 of the Criminal Act / [2] Article 12(5) of the Constitution, Article 72 (see current Articles 72 and 200-5) of the former Criminal Procedure Act (amended by Act No. 8496, Jun. 1, 2007); Article 213-2 of the Criminal Act / [3] Article 227 of the Criminal Act

[2] Supreme Court Decision 2007Do7961 Decided November 29, 2007, Supreme Court Decision 2007Do1006 Decided February 14, 2008, Supreme Court Decision 2008Do2794 Decided July 24, 2008

Defendant 1 and two others

Prosecutor

Attorney Kim Young-young

Changwon District Court Decision 2008No406 decided Nov. 13, 2008

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the abandonment of duty

A. Article 72 of the former Criminal Procedure Act (amended by Act No. 8496 of Jun. 1, 2007) applied mutatis mutandis in cases where a judicial police officer arrests a flagrant offender pursuant to Article 213-2 of the same Act provides that "the defendant shall not be detained unless he/she gives an opportunity to defend himself/herself, or without giving an opportunity to defend himself/herself." Article 31 (1) of the Rules on Duties of Judicial Police Officials shall provide that "when a judicial police officer arrests a flagrant offender, he/she shall prepare a written arrest of a flagrant offender stating the reasons for the arrest," Article 32 (1) of the same Act shall be immediately released if a judicial police officer arrests or accepts a flagrant offender, and Paragraph (2) of the same Article provides that "the judicial police officer shall, when he/she releases a flagrant offender pursuant to the provisions of paragraph (1), report the fact to the prosecutor without delay, and shall prepare a document stating the date and time of release and the reasons for release and file it with the warrant of seizure or delivery," and Paragraph (3) of the warrant of seizure or seizure.

Meanwhile, the crime of abandonment of duties is established when a person who is obligated to act in a specific manner fails to perform his/her duty under the awareness that his/her duty is discarded (see Supreme Court Decisions 9Do1904, Nov. 26, 199; 2005Do4202, Feb. 14, 2008, etc.).

B. Based on the evidence duly admitted, the lower court reversed the first instance judgment convicting the Defendants, the △△△ Group, and the △△ Group on the ground that it cannot be deemed that the police officers belonging to the ○○ Police Team could not be deemed to have seriously neglected or renounced the investigation duties against 18 persons, on the ground that the police officers assigned to the ○○ Police Team 4 Team were arrested as a flagrant offender in accordance with the same police station service regulations, and transferred the evidentiary documents, such as written statements, seizure records, field photographs, etc., to 22 persons suspected of gambling, all of which were arrested as a flagrant offender in accordance with the same police station service regulations, and that the police officers assigned to the ○ Police Station 18 persons suspected of gambling were summoned and investigated based on such evidence.

C. However, the above determination by the court below is difficult to accept.

(1) According to the facts and records acknowledged by the lower court, the following circumstances are revealed.

① The police officers belonging to Defendant 1, Defendant 3, and △△ Group arrested all 22 persons suspected of gambling in the field of gambling as flagrant offenders and connected to the △△ District, seized gambling funds in the process, and additionally seized gambling funds in the global belt.

② Nonindicted 1, the head of the strong 4 team who arrived at the △△ District, refused to accept the person suspected of gambling due to the reason that he was not dispatched to and arrested him, and accordingly, delayed the handling of the case.

③ Nonindicted 2, who took the lead of gambling, proposed that four persons who do not have any way to go through Nonindicted 3 should be given a fine on behalf of the person who led to the commission of the crime. Nonindicted 4 left the country with the intention of paying the total amount of money by demanding him to pay the money, and Nonindicted 5, who called the maintenance of the △△△ area by phoneing Nonindicted 17, was forced to do so.

④ After that, Non-Indicted 5 returned to a district unit by requesting the fleet to return to the fleet. Around that time, the head of the patrol 3 team, Defendant 1 and Non-Indicted 1 of the strong 4 team, Defendant 2, Non-Indicted 6, and Non-Indicted 7, etc., who were led to the subsequent investigation, set the direction of handling the instant case to partially conceal and close the gambling suspects who were led to the confession.

⑤ Then, Defendant 2 asked Defendant 2 to “the decision was made, the actual gambling was made,” and 4 persons, including Nonindicted 8, who denied the crime, were self-scambling and gambling.

6) Defendant 3 and Nonindicted 9 prepared a letter of arrest and a written confirmation on the four persons suspected of gambling in accordance with the direction of Defendant 1 and Nonindicted 6, etc., and Defendant 3, Nonindicted 10, and Nonindicted 11 prepared a letter of voluntary behavior against 17 persons except Nonindicted 2 among the remaining 18 persons.

7) Defendant 3 also returned KRW 4.15 million to Nonindicted 12 and KRW 1.190,000 to Nonindicted 13, among gambling funds confiscated in accordance with Defendant 1 and Nonindicted 6’s instructions (i.e., the prosecutor’s failure to undergo the direction at the time), and Defendant 3 did not prepare a record of seizure and a list of the seized gambling funds.

④ Nonindicted 6 returned all the persons whose identity was confirmed among the remaining 18 persons in △△ District. Nonindicted 6 did not report to the prosecutor the release of some gambling suspects who were arrested as a flagrant offender, and did not prepare a document stating the date and reasons for the release and submit it to the record.

9) The police officers, etc., who belong to the strong 4 team, committed the crime, 4 persons suspected of gambling, 4 persons suspected of not having committed the crime, and 1 person deemed to cooperate in the investigation, etc. At this point, Nonindicted 7, from among the personal identification persons, was released by Nonindicted 14 among the personal identification persons, with the remaining personal identification confirmation persons without taking measures, such as additional investigation, by clarifying the fact that Nonindicted 14 was a majority of the gambling department, a person who was not in charge of a fine, and a person who prepared a written statement by stealing Nonindicted 15.

10. The strong 4 team did not conduct any further investigation for the reason that the time of taking the police station was 08:00, and did not transfer the investigation documents with four persons arrested in the act of committing a crime and related investigation documents to the strong 5 team, and did not explain all the during the investigation

(2) In light of the above provisions, legal principles, and the above circumstances, the Defendants and the police officers of the K4 Team and the K3 Team shall have the 17 persons suspected of gambling arrested as flagrant offenders prepare a voluntarily acting act instead of a letter of arrest of flagrant offenders, release them without any proper investigation, and without any investigation, without reporting the fact of release to the prosecutor. The prosecutor did not prepare a document stating the date and reasons for release, and did not keep the record, and returned the seized part of gambling funds without the prosecutor’s direction without preparing a seizure report and list, and Nonindicted 7 returned the same without any direction. Nonindicted 4 Team’s release without any additional investigation after confirming the history of punishment for the crimes related to the theft and gambling of Nonindicted 14’s identity theft was not merely neglected to perform his duties, but it is reasonable to deem that the investigation duty was intentionally neglected or renounced without any justifiable reason.

(3) Nevertheless, the court below erred by misapprehending the legal principles on the crime of abandonment of duties, or by misunderstanding facts against the rules of evidence, thereby adversely affecting the conclusion of the judgment.

2. As to the preparation of false official document and the holding of such document

(a) Letters of arrest of flagrant offenders and written confirmation;

(1) The first sentence of Article 12(5) of the Constitution declares the principle that “no person shall be arrested or detained without being notified of the grounds for arrest or detention and of the right to assistance of counsel.” Articles 72 and 200-5 of the former Criminal Procedure Act provides that “no person shall be detained unless he/she gives the defendant an opportunity to defend himself/herself by referring to the summary of the crime, the reason for detention, and the opportunity to appoint a defense counsel.” The above provision of the former Criminal Procedure Act applies mutatis mutandis to cases where a prosecutor or a judicial police officer arrests a flagrant offender or delivers a flagrant offender to the general public pursuant to Article 213-2 of the same Act. As such, the above provision of the former Criminal Procedure Act applies mutatis mutandis to cases where a judicial police officer arrests a flagrant offender as a flagrant offender, the reasons for detention, and the opportunity to defend him/her, and such legal principle likewise applies not only to cases where an unflagrant offender is arrested, but also to cases where an emergency arrest is ordered prior to the exercise of the power to arrest him/her.

(2) According to the reasoning of the judgment below, the court below reversed the judgment of the court of first instance that found Defendant 1 and 3 guilty of the facts charged on the ground that there is no evidence as to the conspiracy of Defendant 1 and 3, on the grounds that the Defendants and the police officers belonging to △△ Group and △ Group did not appear to have been informed of the grounds for arrest and the right to appoint counsel, and that the above four police officers were not informed of the grounds for arrest and the right to appoint counsel from any police officer. Thus, the court below found that the above four police officers belonging to △△ Group and △ Group were not notified of the grounds for arrest and the right to appoint counsel in preparing a letter of arrest for flagrant offenders, but the police officers who prepared a document of arrest and a letter of confirmation for flagrant offenders were likely to have been notified as a matter of course by other police officers, and there is a high probability that there was no intention to prepare a false public document, and even if not, there is no evidence as to the conspiracy of Defendant 1 and 3.

(3) However, according to the facts and records acknowledged by the court below, the following facts are revealed: (a) any police officer belonging to the △△ Group and △△ Group were arrested a flagrant offender and did not notify the grounds for arrest and the right to appoint a defense counsel until several times have passed after arresting a flagrant offender again; (b) Nonindicted 6, etc., of the 1 and the 4 team; (c) Defendant 3 prepared the grounds for arrest of a flagrant offender; (d) Nonindicted 8, etc., who was suspected of gambling, submitted a false statement of reasons for arrest and the right to appoint a defense counsel; and (d) Defendant 1 and 3, who was well aware of the progress of the instant case, such as participating in the arrest of a flagrant offender by directly sending to a gambling site; and (e) Defendant 4, who made a false statement of reasons for arrest and the right to appoint a defense counsel; and (e) Defendant 4, who made a false statement of the reason for arrest and the right to appoint a defense counsel after arresting a flagrant offender.

Therefore, in light of the above legal principles and the above circumstances, it is reasonable to view that Defendant 1 and 3 conspired with Nonindicted 9, etc. to prepare a false letter of arrest and a written confirmation, and that there was a criminal intent for the preparation of a false public document at the time.

Nevertheless, the judgment of the court below which made a different judgment is erroneous by misunderstanding facts in violation of the rules of evidence and affecting the conclusion of the judgment.

(b) Voluntary written consent;

(1) Article 3(2) of the Act on the Performance of Duties by Police Officers provides that “In cases where questioning about a person under paragraph (1) at that place is deemed disadvantageous to the person or interfering with traffic flow, the person concerned may refuse to accompany the person to a nearby police station, district unit, police station or branch office in order to ask questions. In such cases, the person concerned may refuse the request of accompanying the police officer.” Paragraph (4) of the same Article provides that “In cases where inquiry is made under the provisions of paragraph (1) or (2) or the person concerned requests accompanying is required, the police officer shall present a certificate indicating his status to the person concerned, indicate his position and name, explain his purpose and reason, and in cases of accompanying, indicate the accompanying place.”

On the other hand, official documents refer to official documents prepared in the name of a public office or a public official.

(2) According to the reasoning of the judgment below, the court below reversed the judgment of the court of first instance which convicted the Defendant on this part, and acquitted the Defendant on the ground that each of the voluntary behavior of this case was merely private documents prepared by Nonindicted 16, etc. and cannot be deemed public documents prepared by the public official.

However, the record reveals the following facts: ① (a) at the bottom of the voluntary behavior letter used at the △△△△△ District, a person who consented to the voluntary movement is required to sign or seal it; (b) at the top, the police officer who requested voluntary movement is required to enter the date and time of accompanying, the place of accompanying, the purpose of accompanying, the object of accompanying, the placement of the police officer in charge, the rank, the rank, and the name of the person in charge; (c) at around 06:0 on April 27, 2007, each of the voluntary behavior of this case: (a) around 06:0 on the date and time of accompanying; (b) four (4) the police officer at the ○○ Police Station at the destination; (c) the investigation of the crime of gambling for the purpose of accompanying; (d) the case of gambling for the purpose of accompanying; and (e) Nonindicted 10 who belongs to the police officer in charge of △△△△ District; and (d) Defendant 1 and 4 team 6.

In light of the aforementioned provisions, legal principles, and the above circumstances, it is reasonable to deem that each of the instant voluntary behavior is a document where the part of private documents in the name of a private person and the official document, including the date, time, purpose, etc. of accompanying, his/her affiliation, rank, and name, are accompanied by the police officer who requested voluntary behavior.

Nevertheless, the court below erred by misapprehending the legal principles on the preparation of a false official document or by misunderstanding the facts in violation of the rules of evidence, which affected the conclusion of the judgment.

C. Relation to the crime of abandonment of duties

In a case where a public official finds an illegal act and prepares and events a false public document with the intention to actively conceal the illegal act without taking appropriate measures in accordance with his/her duties, the illegal state of breach of duty shall be included in the category from the time of preparation of the false public document, and only the preparation of the false public document and the crime of uttering shall be established, and the crime of abandonment of duty, which is the crime of omission, shall not be established separately (see, e.g., Supreme Court Decision 2002Do5004, Mar. 26, 2004). In light of the above legal principles, the court below should also examine the portion of the crime of abandonment of duty against Defendant 1 and 3, as well as the relation between the preparation of the false public document and the crime of uttering.

3. Conclusion

Therefore, the judgment of the court below 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 Lee Hong-hoon (Presiding Justice)