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(영문) 서울고등법원 2019.06.13 2018노2723
특수상해등
Text

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for a term of one year and two months.

except that from the date of this judgment.

Reasons

Summary of Grounds for Appeal

Defendant

(A) There is no fact that there was a misunderstanding of facts, misunderstanding of legal principles, special destruction and damage, and misunderstanding of facts as to the injury caused by a special injury to the victim C vehicle only after the victim C vehicle was pushed down with a iron-resistant stick, and there was no damage.

The defendant does not inflict any bodily injury on the victim C or D when he is sticked with a iron-resistant stick.

The police officer F, as a flagrant offender, did not comply with the procedures for arrest of flagrant offenders, such as the obstruction of performance of official duties, mistake of facts as to injury, and misapprehension of legal principles, arrest of the Defendant as a flagrant offender.

Therefore, F's arrest of flagrant offender constitutes illegal arrest, and thus, F's arrest does not constitute a crime of obstruction of performance of official duties against the accused.

Even if the defendant inflicted an injury on the victim F, the illegality is excluded as self-defense, emergency evacuation, and legitimate act, because the defendant resisted against illegal arrest.

Since it is merely a misunderstanding of facts about the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (the injury caused by dangerous driving) and the violation of the Road Traffic Act, the blood alcohol concentration cannot reach 0.120%. The report on detection of drinking drivers was first signed by the police officer, and the police officer rejected the Defendant's request for blood collection.

Therefore, the defendant did not have a driving under the influence of alcohol as stated in the judgment of the court below.

The Defendant’s act of driving the victim N did not have any shocked the driver behind the O SM520 vehicle (hereinafter “victim N Driving vehicle”), and was shocked only by mast vehicle not stated in the facts charged, and thus, it cannot be deemed that the Defendant’s act of driving the 4th vehicle caused the instant traffic accident (hereinafter “instant traffic accident”).

The judgment of the court below on the grounds of unfair sentencing is sentenced.

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