Cases where the act of attracting a summary trial suspect in a police station, i.e., a waiting room for the accused, without any legal basis, is recognized as an official confinement.

The case holding that the defendant's legitimate act, mistake of law, and lack of expectation are recognized as a crime of confinement in the police station, that is, the waiting room for the accused, without any legal basis, and that the defendant's assertion that the defendant's act, mistake

Articles 12, 16, 20, 124 of the Criminal Act, Article 4 of the Act on the Aggravated Punishment, etc. of Specific Crimes

Defendant

Seoul High Court Decision 96No2918 delivered on March 18, 1997

[Plaintiff-Appellant] Plaintiff 1 and 10 others (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

The sentence of sentence shall be suspended for the defendant.

Criminal facts

1. The status, position and career of the defendant;

The Defendant was appointed as a policeman and served in Gyeonggi-do and the Jeollabuk-do branch of Jeollabuk-do around 1982, and began to work in Seoul around September 1991, to October 30, 1993, and was promoted from November 1, 1991 to March 30, 1995 to Seoul Nowon-gu branch of the same police station, and from March 31, 1995 to March 31, 199, from March 31, 1984 to March 4, 198, as a police official, to perform the duties of handling the case subject to summary judgment while serving as a police official at the same police station set-off box of the same police station.

2. The circumstantial facts prior to the instant crime

The victim (the age of 48 as of May 21, 194), around 15:40 on July 26, 1993, when driving the urban bus No. 15-3513 on the front side of the party branch of Nowon-gu, Seoul Special Metropolitan City, the driver, who was not in charge of the passenger company, was driving the urban bus No. 5-3513 on the street No. 15 on July 26, 1993, obstructed the course of the victim's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's.

3. Confinement by abuse of authority of the defendant;

At around 21:00 on the same day, the Defendant received and handled the case of insultd Nonindicted Party 1, which was reported by the victim, in a police box of the 21:00 on the same day, and the victim is a mere victim of insult:

The above non-indicted 1 prepared and submitted a written statement to the effect that "I, around 16:20 on July 26, 1993, I would like to give the victim a penalty of KRW 25,00 with the above non-indicted 1 on the basis of the above statement, but I would like to give the victim a notice of the penalty of KRW 25,00,00 with the above non-indicted 1, but the victim could not receive the notice of the notice, and the victim would return the bus company to the summary judgment, and "the defendant found the bus company as a bus engineer and the bus company while driving a car because of the driver's vision, Non-indicted 1, who was waiting for the driver's room, would be slicking and drinking, and will do so." The defendant prepared a written statement to the effect that "I would like to give the engineer an desire to do so," and then, the defendant prepared a written statement to the effect that I would see the victim's fear of the summary trial on the same day."

The victim knew of the fact that he was referred to a summary trial as above and knew that he dealt with the insult case against the above non-indicted 1, and asked the above Nowon Police Station to return home to the defendant and the person in charge of the above police station's summary trial with the knowledge that he was referred to the summary trial at the above time, and again requested him to have him attend the court and proceed to a trial on the following day.

However, despite the above request of the victim, the defendant added the victim to the above police station, i.e., the waiting room for the defendant, and tried to attract the victim into the above police station, i.e., the above police station, and, as the victim did not enter the above protective room, 10 to 20 minutes of the defendant's waiting room, i.e., the victim was placed in the waiting room for the suspect, thereby abusing his authority, and thereby putting the victim into the above protective room, and thereby, the defendant sustained scambs, etc., on which the number of days of treatment cannot be known.

Summary of Evidence

1. Statement made by the defendant in this court;

1. Statement that conforms to the facts stated in the judgment of the defendant in the first trial record;

1. The statement made by the witness Nonindicted 1 and the victim in this court

1. Statement that corresponds to the facts indicated in the first and second suspect examination of the accused prepared by the prosecutor;

1. The third protocol of interrogation of the accused prepared by the public prosecutor and statements made by the accused and victims, which correspond to the facts indicated;

1. Statement that corresponds to the facts stated in the protocol of examination of a suspect prepared by the public prosecutor;

1. Videos conforming to the facts stated in the first written statement of the victim prepared by the prosecutor, and the parts and degree of injury in the judgment among photographs attached to the said written statement;

1. Each statement that conforms to the facts stated in the judgment in the second and third statement of the victim prepared by the prosecutor;

Judgment on Defendant’s argument

1. Justifiable assertion;

(a) Claim for the justifiable act as to the return of a summary judgment;

The defendant's submission of the victim to a summary trial as stated in his/her reasoning stated that the victim is a legitimate act because he/she took place on the ground of his/her desire to avoid disturbance by taking advantage of the above non-indicted 1's written statement. Thus, according to the above evidence, the victim saw the victim as a company belonging to the bus in order to hear his/her desire from the driver who obstructed his/her career while driving and resist the victim, but he/she merely refused an interview with the driver and resisted the victim. While the defendant sufficiently examined such circumstances, he/she did not refer the victim to the above summary trial (see Article 4 of the Punishment of Minor Offenses Act), the defendant's submission of the victim's right to receive a summary trial to the non-indicted 1 without considering the victim's right to receive a summary trial (amended by Act No. 479 of Dec. 22, 1994). Thus, the defendant's submission of the victim's right to receive a summary trial to the above non-indicted 1 as stated in his/her reasoning.

B. The assertion of justifiable act regarding confinement

In addition, the defendant did not take any measure against the suspect who is to be referred to a summary trial unless he was guaranteed by the new illness was the police's occupational practice and guidelines, and the victim was waiting in the above police station, i.e., the suspect, as stated in its reasoning, and the act of attracting the waiting room is also a legitimate act in the course of performing his duties. However, the defendant's assertion cannot be accepted without relation to whether there was such a practice or guidelines, as long as there is no legal ground for detention or detention without following the requirements for detention or detention under the Criminal Procedure Act or the Act on the Performance of Duties by Police Officers, so long as there is no legal ground for detention or detention of the suspect, even if there is such a practice or guidelines in the police duty, it cannot be the ground for the detention of the

2. Criminal intent and assertion of mistake in law;

In addition, the defendant's assertion that he was ordered by the chief of the Nowon Police Station at the time to take protective measures against the victim, who was in the waiting room for a suspect at the police station, and did not have the criminal intent to arrest the victim, and that there was no awareness that he was illegal to arrest the victim, but there was no criminal intent to commit a crime. However, it is sufficient to recognize that the perpetrator had the awareness that the act was a crime, and that there was a criminal intent only when the actor had the awareness that the act was a crime. Furthermore, according to the evidence above, if the defendant's act of confinement is deemed not a crime while the defendant's decision was committed, there is sufficient reason to recognize that the defendant was not a crime. Furthermore, if the defendant was not responsible for recognizing that the defendant was not a crime, it should be justified to recognize that the defendant was not a crime. In light of the defendant's career before and after the present case by the evidence mentioned above, even if the defendant was aware that the act was not a crime, the above assertion by the defendant cannot be accepted.

3. The assertion of lack of expectation

In other words, the defendant also asserts that the defendant's custody of the suspect at the police station, i.e., the duty of the police officer working at the police station, and the defendant, a police officer working at the police station, could not have jurisdiction over the police officer working at the police station, and the defendant could not refuse such request, and thus, the defendant's act of confinement in custody was not responsible for the lack of expectation. However, as seen above, there is no ground to detain the suspect against his/her will, in other words, there is no possibility that the defendant, who has been in charge of the custody of the person in custody, would not have any possibility to avoid the crime, and therefore, the above assertion is rejected.

Application of Statutes

1. Article applicable to criminal facts;

The act of judgment falls under Article 4-2 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 124 (1) of the Criminal Act.

2. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (Article 55(1)3 of the Criminal Act (Discretionary mitigation is made in consideration of the circumstances, such as the fact that the defendant has been sealed for 20 years as a police officer, the fact that the victim has received payment through state compensation for the crime committed in the judgment, and the defendant has divided the crime)

3. Determination of punishment;

Defendant shall be punished by imprisonment with prison labor for up to six months within the prescribed term of punishment.

4. Suspension of sentence;

Article 59(1) of the Criminal Act (Suspension of the above sentence because there are grounds for discretionary mitigation to the defendant, and the defendant has already been subject to disciplinary action due to the instant case, and eventually, he loses his status as a public official, etc., other than the fact that he loses his status as a public official, etc.)

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

Judge Song Ji-sul(Presiding Judge)