(영문) 대전지방법원 2014.11.20.선고 2014노1256 판결

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive. To order the defendant to provide community service for 120 hours.

Reasons

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

A) Since the Defendant was not informed of the police officer of the gist of the crime of obstruction of performance of official duties, the reason for arrest, and the right to appoint a defense counsel from the police officer at the time of arrest of the flagrant offender, the arrest of the flagrant offender constitutes illegal collection evidence, and the evidence collected in the investigation process thereafter constitutes illegal collection evidence. (B) The Defendant conducted a alcohol alcohol measurement at the time of arrest, and was conducted without 20 minutes after the control of drinking reduction, and thus, it cannot be punished on the basis of blood alcohol concentration as stated in the instant facts charged.

C) While the Defendant stopped a vehicle from a drinking control in front of a cafeteria and d cafeteria, while waiting to d cafeteria to d cafeteria for a drinking test, the Defendant was able to walk up to cafeteria free of charge, and the police officer H and the Defendant h were set up, and there was no fact that the Defendant inflicted an injury by assaulting H and G in order to avoid going beyond the process.

2) Unreasonable sentencing

The sentence of the court below (10 months of imprisonment) is too unreasonable.

(b) Conducting inspections (unfair punishment);

The sentence of the court below is unfair because it is too unhued.

2. Determination

A. Judgment on the Defendant’s assertion

1) The allegation that the arrest of a flagrant offender is illegal

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, i.e., (1) police officers H and G who were engaged in drinking control duties: (a) police officers intending to restrain the Defendant from a waiting place to take a drinking-free test; (b) arrest the Defendant committing an assault against him; (c) there is no doubt as to the legality of performing official duties for police officers H and G drinking control, etc.; (b) police officers H and G arrested the Defendant in the act of obstruction of performance of official duties due to the crime of obstruction of performance of official duties; and (c) police officers H and G consistently stated at the investigative agency and the court of the court that “H were arrested the Defendant, and notified the Defendant of all the essential points of the offense, reasons for arrest, defense counsel appointment, etc. at the time of arresting the Defendant in the act of crime of obstruction of official duties; and (c) police officers and G were given statements corresponding thereto at the court of the trial at the time of arresting the Defendant in the act of crime of obstruction of official duties.

2) The assertion that the drinking alcohol measurement is illegal

The measurement of blood alcohol content by pulmonary measuring instruments is conducted by measuring pulmonary alcohol content by absorbing in a pulmonary measuring instrument so that it can not be readily concluded that the blood alcohol concentration by pulmonary measuring instrument is the same as the blood content, and pulmonary alcohol content is emitted through pulmonary air. As such, in a case where a considerable time has not elapsed from the final alcohol time, or where the alcohol content remaining in the pulmonary measuring instrument is measured with the pulmonary air discharged from the pulmonary instruments, such as tar, earth, stove, dental metal, and oral conditioning, etc., if the blood content in the pulmonary measuring instrument is measured with the pulmonary air, it can be found that the pulmonary alcohol concentration by the pulmonary measuring instrument does not have any significant influence on the pulmonary measuring instrument, and thus, it cannot be determined that the pulmonary alcohol concentration by the pulmonary measuring instrument did not have any influence on the pulmonary alcohol content before calculating the pulmonary alcohol content (see, e.g., Supreme Court Decision 2006Do42).

The following circumstances acknowledged by the court below and evidence duly adopted and examined the court below. ① The defendant 2nd 5 to 6th math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math math.).

3) The assertion that the victimized police officers did not injure or interfere with the performance of official duties.

원심 및 당심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 사정들, 즉 ① 피해경찰관 H, G는 수사기관 및 원심 법정에서, '피고인이 음주감 지기에 의해 음주운전 단속에 걸려 음주측정을 대기하던 중 측정 장소를 벗어나 뒷편 식당 쪽으로 걸어 올라가길래 구두로 측정 장소를 벗어나지 말 것을 요구하였으나, 피고인이 욕설을 하면서 계속 식당 쪽으로 올라가, 피고인을 쫓아가서 이를 제지하자 어깨와 발로 H 가슴 부위를 때린 후 경찰근무복을 잡고 서로 몸싸움을 하다가 H을 바닥에 넘어뜨렸다. 또한 이를 보고 달려온 피해 경찰관 G가 피고인을 말리자 G의 정강이를 발로 걷어찼다'고 진술하였는데, 그 진술이 일관되고 구체적이며 달리 신빙성을 의심할 만한 사정을 찾아볼 수 없는 점, ② 당시 사건 현장에서 피고인 바로 직전에 음주단속에 걸려 대기하고 있던 0도 경찰과의 전화 통화 및 당심 법정에서, '피고인이 음주 단속업무를 하는 경찰관에게 반말과 욕설을 하면서 서로 몸싸움이 있었고 경찰관이 넘어지자 주변 경찰관들이 달려와서 피고인을 제압하는 것을 보았다'고 진술하였고, 당시 현장에서 음주단속 업무를 하던 의경 Q도 당심 법정에서 '식당 쪽으로 도망가려는 피고인을 제지한 피해 경찰관에게 욕설을 하면서 발로 차 경찰관을 넘어뜨린 것을 보았다'고 진술하여, 피해 경찰관들이 한 진술에 모두 부합하는 점, ③ 피해 경찰관들을 촬영한 사진 및 상해진단서에 기재된 상해 부위 및 정도 또한 피해 경찰관들 진술에 부합하고, 그 상해 부위나 정도를 고려하면, 자연적으로 치유될 수 있는 정도의 극히 경미한 상해로 보기도 어려운 점 등을 종합하면, 피고인이 이 사건 공소사실 기재와 같이 피해 경찰관들에게 상해를 가하여 정당한 공무집행을 방해한 사실이 충분히 인정된다. 피고인이 이 부분 주장도 이유 없다.

B. Determination on the grounds of unfair sentencing by both parties

The fact that the defendant is not against the defendant and does not make any effort to recover damage differently is disadvantageous.

However, there are extenuating circumstances, such as the relatively minor degree of injury suffered by the victimized police officers, the first offender who has no record of criminal punishment, and the fact that the Defendant was detained for about seven months. In full view of all the sentencing conditions, including Defendant’s age, character and conduct, environment, motive, means and consequence of the crime, and circumstances after the crime, the sentence of the lower court is too unreasonable. The Defendant’s assertion of unfair sentencing is reasonable, and the prosecutor’s assertion of unfair sentencing is without merit.

3. Conclusion

Since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following is ruled again.

The summary of the facts constituting the crime and evidence. The facts constituting the crime against the defendant recognized by this court and the summary of the evidence are as stated in each corresponding column of the judgment below. It shall be quoted in accordance with Article 369 of the

Application of Statutes

1. Article applicable to criminal facts;

Article 257 (1) of each Criminal Code (influence of injury), Article 136 (1) of each Criminal Code (influence of the performance of official duties), Article 148-2 (2) 2 and Article 44 (1) of the Road Traffic Act (influence of drinking driving)

1. Commercial competition;

Articles 40 and 50 of each Criminal Act (Punishments stipulated in each of the crimes of bodily injury against G and the crimes of obstruction of performance of official duties, the crimes of bodily injury against victim H, the crimes of obstruction of performance of official duties, and the crimes of bodily injury against victims of heavy punishment)

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution (Consideration of favorable circumstances in the future);

Article 62(1) of the Criminal Act

1. Social service order;

Article 62-2(1) of the Criminal Act, Article 59 of the Act on Probation, etc.