[1] Whether “the necessity of arrest” is required for the arrest of a flagrant offender (affirmative), and the standard for determining whether a flagrant offender fails to meet the requirements for the arrest of a flagrant offender and thereby constitutes an illegal arrest

[2] Meaning of “legal performance of official duties” in the crime of obstruction of performance of official duties, and whether “self-defense” is established in a case where a flagrant offender inflicts an injury on a police officer in the course of resisting the police officer’s illegal arrest (affirmative)

[3] The case affirming the judgment below which acquitted the police officer of the "injury" and "Obstruction of Performance of Official Duties" on the ground that the above act constitutes legitimate self-defense, in case where the defendant issued a driver's license after having received a police officer's non-examination and delivered a driver's license, and the police officer resisted that the defendant's attempt to arrest the defendant as an offender in the crime of insult was against the police officer and inflicted an injury on the police officer

[1] Any person may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act). In order to arrest a flagrant offender as a flagrant offender, there should be concerns about the necessity of arrest, i.e., the necessity of escape or destruction of evidence, other than the apparentness of an offense, and the arrest of a flagrant offender who fails to meet such requirements constitutes illegal arrest, which is not a warrant based on legal basis. Here, whether the requirements for the arrest of a flagrant offender are satisfied should be determined based on the situation at the time of arrest. In addition, the determination by a prosecutor or a senior judicial police officer as to whether the requirements are met may have a considerable discretion, but if a prosecutor or a senior judicial police officer’s judgment as to whether the requirements are met is considerably unreasonable in light of the empirical rule, such arrest should be deemed unlawful.

[2] The crime of obstruction of performance of official duties under Article 136 of the Criminal Code is established only when the performance of official duties by a public official is legitimate. Here, legitimate performance of official duties refers to not only the abstract authority of a public official, but also the case meeting the legal requirements and methods with regard to specific performance of official duties. If a police officer attempted to arrest a flagrant offender due to a real force despite a police officer’s failure to meet the requirements for arrest of a flagrant offender, it cannot be deemed a legitimate performance of official duties. If the arrest of a flagrant offender was to be deemed to have been illegal beyond lawful performance of official duties, and if the act of arrest of a flagrant offender was to be deemed to have been illegal, the act of inflicting an injury on a police officer during the process of resisting the arrest of a flagrant offender constitutes legitimate act

[3] The case affirming the judgment below which acquitted the defendant of obstruction of performance of official duties on the ground that, in case where the defendant issued a driver's license after having received a police officer's non-explosion questioning from the police officer and issued a driver's license, and the police officer notified the police officer that he would arrest the defendant as a flagrant offender, and then resisting the defendant's right shoulder, and inflicted an injury on the police officer, the defendant already issued a driver's license in response to the police officer's non-exploitial questioning, and it is difficult to deem that the defendant's insulting act of the defendant was a temporary and contingent act committed in the course of protesting against the police officer's non-exploitial questioning, and that the police officer's act of arresting the defendant does not constitute legitimate performance of official duties, and that the defendant's act of inflicting an injury in the course of resisting the defendant's body constitutes legitimate violation of the present law due to illegal arrest, and it constitutes self-defense and self-defense against the defendant.

[1] Articles 211 and 212 of the Criminal Procedure Act / [2] Articles 21, 136, and 257 (1) of the Criminal Act; Articles 211 and 212 of the Criminal Procedure Act / [3] Articles 21, 136 (1), 257 (1), and 311 of the Criminal Act; Articles 211, 212, and 325 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2006Do148 delivered on September 8, 2006 (Gong2006Ha, 1699) / [1] Supreme Court Decision 98Do3029 delivered on January 26, 199 (Gong199Sang, 405) Supreme Court Decision 200Do5701 Delivered on June 11, 2002 (Gong2002Ha, 1720), Supreme Court Decision 2002Do4227 Delivered on December 10, 202, Supreme Court Decision 2008Do2099 Delivered on May 29, 2008 / [2] Supreme Court Decision 9Do4341 delivered on July 4, 200, Supreme Court Decision 2008Do209638 delivered on June 26, 202

Defendant

Prosecutor

Seoul Western District Court Decision 2010No739 decided February 17, 2011

The appeal is dismissed.

We examine the grounds of appeal.

Any person may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act). To arrest a flagrant offender as a flagrant offender (Article 212 of the Criminal Procedure Act). In addition to the punishment of the act, the current and time contact of the crime, the necessity of arrest, i.e., the necessity of escape or destruction of evidence, and the arrest of a flagrant offender who fails to meet such requirement constitutes an illegal arrest without a warrant based on legal basis (see, e.g., Supreme Court Decisions 98Do3029, Jan. 26, 1999). Determination of whether the requirements for the arrest of a flagrant offender are met should be based on the situation at the time of the arrest. However, in cases where the judgment by a prosecutor or a judicial police officer, etc. on whether the requirements are met is considerably unreasonable in light of empirical rule, such arrest shall be deemed illegal (see, e.g., Supreme Court Decisions 200Do5702, Jun. 11, 2002; 200Do7427, Feb. 2012).

Meanwhile, the crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established only when the performance of official duties by a public official is legitimate. Here, lawful performance of official duties refers to cases where the act is within the abstract authority of a public official, and satisfies the legal requirements and methods regarding specific performance of official duties. In a case where a police officer tried to arrest a flagrant offender due to his real force despite a failure to meet the requirements for arrest of a flagrant offender, it cannot be deemed legitimate performance of official duties. If the act of arresting a flagrant offender was to be deemed to have been illegally arrested outside of lawful performance of official duties, and if the act of arresting a flagrant offender was to be deemed to have been illegal arrest, the act of injuring a police officer during the process of resisting the arrest of the flagrant offender constitutes self-defense as an act for deviating from the current unfair infringement of body caused by illegal arrest (see, e.g., Supreme Court Decisions 2006Do148, Sept. 8, 2006; 206Do2732, Nov. 23, 2006

According to the reasoning of the judgment below and the record, around 01:45 on September 6, 2009, the Defendant: (a) when she was under the influence of alcohol at the Seodong-dong Seoul Metropolitan Government (hereinafter omitted); (b) when Nonindicted 1 and 2, a police officer patroled a neighboring area, issued her driver’s license to Nonindicted 2; (c) between Nonindicted 2 and Nonindicted 2 on the patrol lane in order to meet the Defendant’s status, the Defendant provided her hicker with a large voice; and (d) Nonindicted 1 notified the Defendant that she would arrest him as a flagrant offender in the crime of insult; and (e) attached the Defendant’s right shoulder to the Defendant; and (e) the Defendant strongly resisted against this and inflicted an injury on Nonindicted 1 as described in the facts charged.

According to the above facts, even if the defendant was at the time when Nonindicted 1 arrested the defendant as a flagrant offender, or immediately after the commission of the crime of insult in this case was committed, the defendant already delivered the driver's license in response to Nonindicted 1 and 2's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 1's desire, and it is difficult to deem that the defendant might flee or destroy evidence because not only the non-indicted 1's desire was directly taken place. In addition, the defendant's crime of insult in this case is a temporary and contingent act committed in the course of protesting against the non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1'

Therefore, since Nonindicted 1’s act of arresting the Defendant cannot be deemed lawful performance of official duties because it did not meet the elements of the crime of obstruction of performance of official duties, and Nonindicted 1’s act of inflicting an injury on Nonindicted 1 in the course of resisting the Defendant’s attempt to escape from the arrest constitutes self-defense as an act to escape from the present unreasonable infringement on the body caused by illegal arrest.

In this regard, it is justifiable for the court below to maintain the judgment of the court of first instance which acquitted the defendant about the injury and obstruction of performance of official duties among the facts charged in this case.

The court below did not err in the misapprehension of legal principles as to the requirements for the arrest of flagrant offenders.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)