Defendant

Defendant

Park Ho-sung(Court) (Court of Justice) (Court of Justice) (Court of Justice)

Law Firm Il, Attorneys Jeon Sung-soo et al.

Jeonju District Court Decision 2016Gohap2299 Decided June 8, 2017

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment of innocence shall be published.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

피고인은 경찰관 공소외 2와 공소외 3이 112 신고를 받고 온 이후, 공소외 1을 폭행하려고 하지 않았기 때문에 피고인이 공소외 1을 폭행하려는 것을 공소외 2가 제지한 사실도 없다. 피고인은 당시 공소외 2에게 반말을 하였다는 이유로 공소외 2와 말다툼을 하던 중 자리를 피하려고 하자, 공소외 2가 막아서기에 비키라고 하면서 공소외 2의 가슴을 밀쳤을 뿐이고, 공소외 2의 정강이를 찬 사실은 없다. 따라서 피고인이 공소외 2의 가슴을 밀친 행위는 공소외 2와 말다툼을 하던 중 발생한 것으로 112 신고 처리 업무와는 직접적인 관련이 없는바, 공소외 2가 공무를 집행하던 상황에서 일어난 폭행이라고 볼 수 없고, 설령 공무를 집행하던 상황이라고 할지라도, 가슴을 1회 밀친 정도로는 이를 공소외 2의 직무 집행을 방해할 정도의 폭행이라고 볼 수 없다. 또한, 피고인에게 도망 또는 증거 인멸의 염려 등 체포의 필요성이 있다고 보기 어려우므로, 공소외 2가 피고인을 체포한 것은 현행범체포의 요건에 해당하지 아니하므로 위법한 체포라 할 것이고, 설령 피고인이 그 과정에서 공소외 2의 정강이를 찼다고 할지라도, 이는 위법한 체포를 면하려고 하는 과정에서 발생한 정당방위에 해당한다고 할 것임에도, 이 사건 공소사실을 유죄로 인정한 원심은 사실오인 및 법리오해로 인하여 판결에 영향을 미친 위법이 있다.

B. Unreasonable sentencing

The punishment of the court below (two months of imprisonment, two years of probation, two years of community service, 240 hours) is too unreasonable.

2. Judgment on misconception of facts and misapprehension of legal principles

A. Summary of the facts charged

On October 13, 2016, around 09:55 on October 13, 2016, the Defendant was punished for a dispute due to Nonindicted 1 and parking problems at the ○○ apartment △△△ Dong's underground parking lot located in the Jeonsan-si (location omitted), and Nonindicted 2, who was dispatched after receiving the 112 report, attempted to take the Defendant at the time of Nonindicted 1, 200, the Defendant was subject to restraint.

Accordingly, the Defendant, by hand, assaulted Non-Indicted 2’s chests at one time, who continued to take a bath, arrested the Defendant as an offender in the act of committing an offense, and assaulted Non-Indicted 2, who attempted to take the front seat of the patrol vehicle twice at two times on the back of the patrol vehicle.

Accordingly, the defendant interfered with the legitimate execution of duties of police officers concerning 112 report processing.

B. Relevant legal principles

In relation to the crime of obstruction of performance of official duties as stipulated in Article 136 of the Criminal Act, an assault means an act of exercising force against a public official who performs official duties, and such assault includes directly or indirectly an act of exercising force against a public official (see Supreme Court Decision 81Do326, Mar. 24, 1981). Since assault and intimidation in the crime of obstruction of performance of official duties should be to the extent that it could interfere with the execution of official duties by nature, it shall not be deemed an assault and intimidation by a public official if it is insignificant to the extent that the public official is not opened (see Supreme Court Decision 2006Do449, Jun. 1, 2007).

When a public prosecutor or judicial police officer arrests a flagrant offender, he/she shall give an opportunity to defend himself/herself by stating the gist of the offense, the reason for arrest, and the opportunity to appoint a defense counsel (Article 213-2 and Article 200-5 of the Criminal Procedure Act). In addition, in order to arrest a flagrant offender, there should be concerns about the necessity of arrest, i.e., the necessity of escape or destruction of evidence in addition to the punishment of the offense, the current and hourly contactness of the offense, and the apparentness of the offense, and the arrest of a flagrant offender who fails to meet such requirements constitutes illegal arrest without a warrant, which is not based on legal basis. Determination of whether the requirements for the arrest of a flagrant offender are satisfied should be based on the situation at the time of the arrest. However, in light of the situation at the time of the arrest, if the judgment by a public prosecutor or judicial police officer, etc. on whether the requirements are met is considerably unreasonable in light of the empirical rule, such arrest shall be deemed illegal (see, e.g., Supreme Court Decision 2011Do36262, May 26).

If it is inevitable to view that an act of arresting a flagrant offender goes beyond lawful performance of official duties and illegally arresting a flagrant offender, the act of assaulting a police officer or inflicting an injury on a police officer during the process of resisting against the police officer’s attempt to escape from such arrest constitutes legitimate self-defense as an act to escape from the current infringement on the body caused by an illegal arrest (see, e.g., Supreme Court Decisions 2006Do148, Sept. 8, 2006; 2006Do2732, Nov. 23, 2006).

C. The judgment of the court below

Considering the following circumstances acknowledged by the evidence duly admitted and investigated, the lower court determined that the Defendant committed the act identical to the facts charged in the instant case, and that the crime of obstructing the performance of official duties against the Defendant was established on the ground that the requirements for arresting the Defendant in the act was satisfied.

1) The Defendant, upon receiving the report of 112, went to the police officers Nonindicted 2, who were called up with Nonindicted 2, and went to the call, and tried to take a bath thereafter, and was arrested as an offender in the act of committing the crime of obstruction of performance of official duties. However, insofar as the concept of assault in the crime of obstruction of official duties is understood as exercising direct and indirect tangible force against a public official, there is no doubt that such act constitutes “Assault” in the crime of obstruction of official duties.

2) In addition, in light of the fact that the Defendant carried out not only Nonindicted 2’s chest by the police officer Nonindicted 2 but also took a bath as above, and that Nonindicted 1 and 4 were still interested in, and that Nonindicted 4 and the police officer were asked to control the police officer, it can be deemed that there is the necessity of arrest, i.e., the necessity of escape or destruction of evidence. In light of the situation at the time of arrest, the judgment of the investigative officer on the requirements cannot be concluded to the effect that there is considerable rationality in light of the empirical rule (the Defendant asserted that, in the circumstance at the time of arrest, Nonindicted 1 and 3 were terminated, and the police officer was tryed to go out and tried to go out at the site of the instant case, and the police officer did not stop himself without any justifiable reason. However, considering the Defendant’s attitude appearing in the state of interest, the degree of abusive language or verbal abuse, and the Defendant’s attitude appearing in the video, it seems that physical conflict may still occur if the police officer did not stop, and that there could have been possibility of destruction or destruction of evidence).

3) 피고인은 경찰관 공소외 2의 가슴을 밀친 다음 경찰관들에게 제압되어 체포를 당하였는데, 그 상황을 목격했던 공소외 4와 경찰관 공소외 2는 수사기관에서부터 원심 법정에 이르기까지 피고인이 현행범으로 체포되어 순찰차에 들어가던 과정에서 저항을 하면서 발로 경찰관 공소외 2의 다리 부분을 발로 찼다고 일관되게 진술하고 그러한 내용은 그 당시 공소외 2의 다리 부위를 촬영한 사진 영상에도 부합하고 당시 전반적인 상황에도 들어맞아 이를 믿을 수 있다. 이러한 증거들을 종합해 보면, 피고인이 체포를 당하는 과정에서 순찰차 안에 들어가려다가 이를 저항하는 과정에서 공소외 2의 정강이나 다리 부위를 발로 찬 것으로도 보인다.

D. Judgment of the court below

살피건대, 기록에 의하여 인정되는 아래와 같은 사정들을 종합하여 고려하면, 피고인이 경찰관의 112 신고처리에 관한 정당한 직무집행을 방해하였다는 사실이 합리적인 의심의 여지가 없을 정도로 입증되었다고 보기 어렵고, 피고인에 대한 체포가 현행범인 체포의 요건을 갖추지 못하여 적법한 공무집행으로 보기 어려우므로, 그 과정에서 피고인이 체포에 대항하여 공소사실과 같이 경찰관의 정강이를 발로 찼다고 할지라도 이를 공무집행방해죄로 다스릴 수는 없다.

1) First of all, according to the evidence duly adopted and examined by the court below, the defendant was found to have been in dispute due to the vehicle contact accident in Nonindicted 1 and underground parking lots residing in the same apartment, and Nonindicted 2 and Nonindicted 3 were dispatched to the above apartment parking lots by the police officer upon receipt of the 112 report, and the police officer Nonindicted 2 was dispatched to the above apartment parking lots; the police officer Nonindicted 3 heard the statement from the defendant on each contact accident from Nonindicted 1; the defendant was in contact with the police officer Nonindicted 2 on one occasion; and the defendant was in close relation with the police officer Nonindicted 2 on one occasion.

However, considering the CCTV images taken on the instant site and the following circumstances acknowledged by the recording submitted by the Defendant, i.e., ① Nonindicted 1’s moving the Defendant’s chest from Nonindicted 2 to the entrance of the parking lot 10 to 20 meters away from the scene of the contact with Nonindicted 4 before pushing the police officer, and the dispute between the Defendant and Nonindicted 1 was almost terminated. The Defendant was in a sudden situation where the Defendant did not err by the police officer Nonindicted 2. ② Nonindicted 2 started a dispute between the Defendant and Nonindicted 1, who was heard the statement about the contact accident from the Defendant, and the Defendant was unable to view that Nonindicted 2 and Nonindicted 1’s chest could not be seen as interfering with the Defendant’s chest on the part of Nonindicted 2 and Nonindicted 1’s chest on the part of Nonindicted 2, who was difficult to view that Nonindicted 2 and Nonindicted 1’s chest on the part of the Defendant’s chest on the part of Nonindicted 2, who was the Defendant’s chest on the part of Nonindicted 2 and the Defendant’s chest on the part of Nonindicted 21.

2) Next, according to the following circumstances acknowledged by the record, when the defendant resisted against the arrest of the police officer Nonindicted 2 in the act of walking 2 times on the two occasions, the following circumstances acknowledged by the record: (i) according to CCTV images on which the site of this case was taken, it is impossible to confirm the situation that the defendant walking 2's mouth of the police officer, and (ii) there was each legal statement made by Nonindicted 2, 3, and 4 of the witness of the court below as evidence corresponding to this part of the facts charged; (iii) the above witness made a statement consistent with the statement that "the defendant 2, 3, and 4 went beyond the lower limit of the police officer's neck," and the above witness was prosecuted at the investigative agency, but the above part of the indictment was not confirmed in CCTV images, and the defendant was found to have not been able to delete the above part of the indictment because he responded to the defense against the two descendants. In full view of the above witness's statements, it is doubtful that the above witness's statement cannot be seen.

3) Even if the Defendant appears to walk on the part of the police officer Nonindicted 2, the following circumstances acknowledged by the record, namely, ① it is difficult to deem that the Defendant’s one time pushed the police officer Nonindicted 2 was committed during the performance of official duties by Nonindicted 2, and ② even if the Defendant constitutes the crime of obstruction of the performance of official duties, the police officers could sufficiently know that the Defendant was residing in the apartment where the Defendant was called upon receiving 112 reports from the occupants in the apartment parking lot of this case, and so it is easy to identify the Defendant’s personal information because the Defendant had already been secured the vehicle number, and ③ it is difficult to conclude that there was a concern about the escape of the police officer, other than the police officer Nonindicted 2, Nonindicted 3, Nonindicted 1, and Nonindicted 4, etc. at the time of the instant case, as well as Nonindicted 2, Nonindicted 2, and Nonindicted 4, in the process of arresting the Defendant at the request of Nonindicted 2, and thus, it is difficult to readily conclude that the Defendant was unlawful in the process of immediately arresting the Defendant.

E. Sub-decision

Therefore, even though the facts charged in this case constitute a case where there is no proof of crime and the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, the judgment of the court below which found the defendant guilty is erroneous in the misapprehension of facts and misapprehension of legal principles which affected the conclusion of the judgment

3. Conclusion

Therefore, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The facts charged of this case are as indicated in the above 2-A. D., as seen in the above 2-2-D., since the facts charged of this case constitutes a case where there is no proof of crime, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is publicly announced under Article 58(2) of the Criminal Act.

Judges Gangseo-gu (Presiding Judge) Kim Jong-young