(a) The purport of Article 41 (2) of the Road Traffic Act provided that police officers can measure driver's taking of the vehicle;

(b) The method by which police officers can measure whether the driver's continued operation of the motor vehicle is objectively evident;

A. The provision of Article 41 (2) of the Road Traffic Act provides that police officers shall take appropriate measures such as the prevention of danger and injury to traffic accidents, etc. caused by drinking driving, the prohibition of driving on a drinking source electronic system, etc. so as to ensure traffic safety and traffic hazard removal, and smooth traffic flow, so granting drivers the authority to request for a measurement of driving level. Furthermore, drivers are also obligated to actively cooperate with the traffic safety appearance in response to police officers' requests, and they do not grant drivers the authority to demand a measurement of drinking level for the investigation of crimes that a driver driven in a drinking state.

B. If it is objectively apparent that a driver will not continue driving a vehicle any longer, the occurrence of a traffic accident caused by the operation of the vehicle is unlikely to be anticipated at all. Therefore, it is entirely unnecessary for police officers to take necessary measures to ensure the safety of road traffic, such as prohibiting the driver from driving a vehicle. In such a case, the police officers need to take measures to ensure the safety of traffic on the grounds that there is no need to force police officers to take necessary measures to ensure the safety of road traffic, such as prohibiting the driver from driving the vehicle. In such a case, the police officers demand the driver to take a alcohol test to clarify whether the driver's act of driving the vehicle was done in a state of drinking, i.e., a request for a alcohol test is an investigation into the crime of drinking driving, which is general

Article 41 of the Road Traffic Act

Defendant

Defendant shall be punished by a fine of KRW 1,500,000.

When the above fine is not paid, the defendant shall be confined in a workhouse for the period calculated by converting the amount of KRW 5,000 into one day.

One hundred and seventy-five days of detention before the judgment in this case shall be included in the period of detention in a workhouse.

Of the facts charged in the instant case, the Defendant is acquitted.

Around 23:15 on November 23, 1991, the Defendant: (a) was unable to get out of the passenger car parked in front of the passenger car in front of the passenger car at the time when the Defendant was parked in the front of the will, and (b) the driver and the driver of the passenger car in front of the passenger car in front of the passenger car at the time; (c) the front line of the Changwon Police Station, where he was on duty in the aftermath patrol, assigned the police box of the Changwon Police Station, where he was on duty in the aftermath patrol, to find this and take a drinking test; (d) the front line of the police box of the Changwon Police Station, where he was on duty in the aftermath of the police station, which he was on duty in front of the police station in the Gyeongnam Police Agency, requested the police box of approximately 50 meters away from the front line to take a drinking test; and (d) the Defendant was able to kill the victim’s her two-way face by taking advantage of the Defendant’s her hair, such as 1, and 3.

1. Statements consistent with part of the facts in the judgment of the defendant in the first trial record;

1. The witness Kim Jong-cheon, and the soldiers shall make each statement consistent with the facts set forth in this Court;

1. Statement that conforms to the facts indicated in the protocol of examination of the accused prepared by the prosecutor;

1. Each statement that conforms to the facts stated in the judgment in relation to the chief of the prosecutor's office, the chief of the judicial police officer's assistant, and the chief of the Kim Jong-cheon;

1. Statement that conforms to the part and degree of the injury in the judgment among the medical certificates on Kim Jong-cheon in preparation of the doctor's Yang-hee;

1. Article applicable to criminal facts;

Article 2(2) and (1) of the Punishment of Violences, etc. Act, Article 257(1) of the Criminal Act, Article 4(1) of the Act on Provisional Measures such as Fines (Selection of Fines)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Summary of this part of the facts charged against the defendant

Defendant,

A. On the date and time of the crime, at the place of the crime, the above-mentioned soldiers, police officers, and Kim Jong-cheon, assaulted the same persons and interfere with the performance of their official duties, on the grounds that they demand voluntary movement to police agencies in order to measure drinking, on the grounds that they discovered the Defendant's drinking driving and request for voluntary movement to the police

B. Around 24:00 on the same day, on the ground that a person was driving a vehicle while driving the vehicle, he/she was involved in the above windowping box and brought the guard of the Changwon Police Station and the police boat crew belonging to the traffic department to the defendant for a face-to-face test, and requested a drinking test by a face-to-face and a face-to-face test was taken, but he/she was exempted from the fire of the measuring instrument.

2. Judgment on the obstruction of performance of official duties

According to the above evidence, it is clearly recognized that the defendant committed violence against the former police officer Kim Jong-cheon and incurred injury to Kim Jong-cheon during his/her death, on the grounds as stated in its reasoning.

However, the above evidence reveals that the defendant's use of violence against the above police officers, and the defendant's statement in this court near the defendant's leap witness's leap. When the above evidence collected the statement in the application form submitted by the defendant to the party members and the statement in this court near the road where the defendant's use of the above vehicle was held, the defendant's use of the above vehicle was put in place near the 5 leapju with two company employees and the leapju's house in the vicinity of the leapju. The defendant's use of the above lele-car's lele-car, which was parked immediately above the le-car's vehicle, could not move out due to the defendant's vehicle, and the le-car driver's use of the above le-car can not get out of the defendant's vehicle, and the defendant's use of the above le-car in the above le-car in the process of reporting this to the defendant's use of drinking driver's license, and the defendant's use of the above le's use of the defendant's le.

However, the crime of obstruction of performance of official duties is the premise of a legitimate execution of official duties by public officials, on the other hand, the crime of obstruction of performance of official duties is not established even if the police officers are assaulted and boomed by their voluntary act of refusal against the police officers, and even according to the above facts, the above police officers attempted to lead the defendant to the police agency by voluntary act of refusal, and the defendant's refusal to commit the crime of obstruction of official duties cannot be seen as causing this case in the course of the defendant'

Although there may be room to view that the above police officers attempted to arrest the defendant as an offender in the act of drinking driving, it cannot be concluded that the defendant was in a state of drinking (not less than 0.05% of alcohol level in blood) that can be recognized as a crime under Article 41 (1) and (3) of the Road Traffic Act on the ground that the defendant driven the above vehicle and driven the above vehicle immediately at the time, but it is difficult to conclude that the defendant was in a state of drinking (not less than 0.05% of alcohol level in blood) and there is no other supporting material, the defendant cannot be deemed as an offender in the act of drinking driving (not the above police officers arrest the defendant as an flagrant offender). Furthermore, even according to the facts charged, even if the above police officers conducted the crime, the official duties of the defendant at the time of the enforcement are not the arrest of the defendant

Therefore, in light of the above circumstances of the crime, since the defendant merely refused the above police officers' illegal voluntary behavior and cannot be deemed to interfere with the police officers' performance of patrol duty, and there is no other evidence to acknowledge it, this part of the facts charged is the case where there is no proof of crime, and thus, the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, since the crime of violation of the Punishment of Violences, etc. Act which was found guilty is a commercial concurrent crime, it shall not be sentenced separately from the disposition.

3. Judgment on the violation of the Road Traffic Act

According to the evidence relations mentioned above, it is clearly recognized that the police officer's request for alcohol measurement was not complied with after the defendant was discovered to have driven a drinking, as stated in its reasoning, and was carried out with the above hold box.

However, Article 41(1) of the Road Traffic Act provides that "A police officer may, if deemed necessary to ensure the safety of traffic and prevent danger, check whether a driver is under the influence of alcohol, and the driver shall comply with the request of a police officer." Article 107-2 subparagraph 2 of the same Act provides that a person who has considerable grounds to suspect that a driver is under the influence of alcohol and refuses to comply with a police officer's measurement under Article 41(2) shall be punished. Meanwhile, Article 43 of the same Act provides that a police officer is under the influence of alcohol, if deemed that a police officer is under the influence of alcohol, a police officer may temporarily stop the vehicle and request the driver to stop the vehicle until the driver is under the influence of alcohol, and take necessary measures. It is clear that the provision of the Road Traffic Act provides that a police officer is under the control of a police officer to cooperate with the police officer for the purpose of ensuring the safe and smooth flow of traffic by removing all traffic dangers and obstacles on the road, and the provision of the Road Traffic Act provides that a police officer is under the control of drinking Act.

In accordance with Article 12(2) of the Constitution, all citizens are guaranteed the right not to be forced to make a statement unfavorable to themselves in criminal cases, and Article 12(3) of the Constitution adopts warrant requirement according to due process in arrest, detention, seizure and search (Article 12(3) of the Constitution, although the "verification" of the above provision has been absent, verification shall not be deemed an exception to the warrant requirement, which is a compulsory investigation, even if it is not a method of collecting blood). If the law forces the driver to comply with the investigation of the crime of drinking driving without the consent of the warrant issued by the judge, if it results in infringing fundamental rights guaranteed by the Constitution.

In other words, the provisions of Article 41 (2) of the Road Traffic Act and Article 107-2 (2) 2 of the same Act, which are the penal regulations, grant a police officer the right to take a drinking test for the purpose of traffic danger and traffic safety, such as traffic accidents that may cause the driver of a vehicle to drive in a drinking state, that is, the right to take a drinking test for the purpose of achieving such administrative purpose. Thus, in ordinary cases where it is evident that the driver of a vehicle is able to continue driving (in ordinary cases where the driver of a vehicle needs to take a drinking test by blocking the road, it is evident that the driver of the vehicle has the intention to continue driving the vehicle after stopping the vehicle while driving the vehicle) is a dangerous act that may cause a traffic accident, so if it is recognized that the driver has the right to take a drinking test pursuant to the same Act and it is confirmed that the driver is in a drinking state, the police officer may take necessary measures, such as prohibition of driving pursuant to Article 43 of the same Act, and if the driver refuses to take a drinking test, it can be punished.

However, if it is objectively apparent that a driver fails to continue to drive his/her vehicle any longer, it is impossible to expect the occurrence of a traffic accident caused by the operation of the vehicle at all. In such a case, there is no need to require the police officer to take necessary measures for ensuring the safety of road traffic, such as prohibiting the driver from driving the vehicle. Therefore, the drinking test for ensuring the safety of road traffic is entirely unnecessary.

In this case, it is common to say that a police officer's act of driving the king was conducted in a drinking state (not less than 0,05% of alcohol level in blood), i.e., a driver's request for a drinking test to clarify whether the driver was a crime of drinking driving, but this is an investigation into a crime of drinking driving, so it is a conclusion that a police officer should be subject to a compulsory investigation according to the procedure of the Criminal Procedure Act unless the driver voluntarily refuses to respond to a drinking test.

On the premise of this case, it is reasonable to suspect that the defendant was in drinking condition at the time of leaving the above vehicle, and further, the possibility of continuing driving of the above vehicle cannot be ruled out, which is the police officer, to have a legitimate authority to require the defendant to take a drinking test in order to establish the criteria for judgment to prevent danger and injury caused by the defendant's continuous driving and to take appropriate measures such as the prohibition of driving, etc. However, on the other hand, the defendant left the above vehicle 2-3 meters in order to ensure the flow of the vehicle under the circumstances as stated in its holding, and immediately left the vehicle at the time of leaving the vehicle, immediately after parked, it was discovered that the above sick person was exposed to police officers such as the police officer and proceeded with the police box to the police box after leaving the vehicle in order to ensure the flow of the front vehicle, and the defendant's demand that the above vehicle continued driving by the police officer without considering the necessity of continuous driving of the above vehicle (the defendant's statement and witness witness testimony at the front of the Road Traffic Act that the police officer had no intention to keep driving on the following the vehicle.

On the other hand, the above police officer's life cannot be deemed to have demanded a drinking test for the purpose of criminal investigation as to whether the defendant was in a state of drinking at the time of driving, rather than demanding a drinking test as part of the measures to prevent damage to road traffic, and the defendant cannot be punished for the rate under Article 107-2 subparagraph 2 of the Road Traffic Act on the ground that the defendant did not cooperate in the above criminal investigation.

If it is necessary for the defendant to take a drinking test for the purpose of family criminal investigation, unless the defendant voluntarily does not respond to the measurement by a drinking measuring instrument, the police officer should follow the procedure of the verification (physical examination etc.) as provided by the Criminal Procedure Act.

Ultimately, in light of the above various circumstances, the above life-sustaining personnel, who is a police officer, does not seem to have requested the Defendant to take a drinking test due to the need for the safety of road traffic and the prevention of danger, and further, there is no need to require the police officer to take necessary measures, such as traffic safety and the prevention of danger, because it is apparent that the Defendant does not proceed to driving any more, and even based on all evidence submitted by the prosecutor, there is no evidence to acknowledge it, and thus, the above facts charged constitute a case where there is no evidence to prove a crime, thereby, not

It is so decided as per Disposition for the above reasons.

Judge Cho Chang-chul