Defendant

Both parties

At the port of trial (prosecution), Park Jong-young (Public trial)

Attorneys Lee Jong-ho et al., Counsel for the plaintiff-appellant

Suwon District Court Decision 2013DaMa1046 decided December 11, 2013

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

1. Summary of grounds for appeal;

(a) Fact-finding;

1) Prosecutor (as to the acquittal part)

As to the portion not guilty (the obstruction of performance of official duties) of the judgment of the court below, the police officers who received the report in this case confirmed the business obstruction, forceless erosion, and assault charges against female employees at the site through the statements of the main agent, female employees, etc., and asked the defendant to explain the situation by designating the defendant as the suspect. Considering that the defendant was arrested as a flagrant offender due to the use of violence against the police officer during the escape, the defendant was placed in the investigation stage where the suspect is confirmed and escaped after going beyond the questioning of the police officer by stopping the person in danger of war. Therefore, this does not apply to Article 3(4) of the Act on the Performance of Duties by Police Officers, which provides for presenting a certificate of identification as to the procedure for the autopsy and disclosing the name, etc. of the police officer. Even if the police officer violated the above provision, it is merely a minor procedural violation in that the police officer was a uniform.

In addition, according to Article 26 of the Resident Registration Act, it is difficult to interpret it as a procedural provision that a judicial police officer must comply with the Act on the Performance of Duties by Police Officers, in light of the fact that a judicial police officer may demand the presentation of his resident registration certificate to confirm the identity or residential relation of residents

Therefore, the police officer's measures of this case are legitimate execution of official duties, and the judgment of the court below is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment.

2) The defendant (as to the part of the charge)

In a case where a police officer’s act is seen as a non-explosion, as in the judgment of the court below, an act committed by a police officer outside of the place shall be deemed to be a non-explosion, and the act of voluntarily blocking the defendant constitutes an unlawful exercise of public authority. Therefore, even if the defendant committed an injury to a police officer in the course of resisting the exercise of an illegal public authority, it is an act that does not go against justifiable act or social norms. In addition, the defendant did not have inflicted an injury by assaulting Nonindicted 3. Nevertheless, the judgment of the court below which found the defendant guilty of the

B. Unreasonable sentencing (Defendant)

Even if the crime of domestic injury is recognized, in light of all the sentencing conditions of this case, the sentence of the court below (2 million won of fine) is too unreasonable.

2. Judgment on the assertion of mistake of facts

(a) Public prosecutor;

1) This part of the facts charged

At around 03:10 on February 21, 2013, the Defendant: at the “○○○○○○○○○○○○○○○○○○○, which is located in the branch of Sungnam-si ( Address 1 omitted); and upon receiving a report on the support of Nonindicted Party 1 (age 31) and Nonindicted Party 2 (age 39) who is the victim, called Nonindicted Party 1’s police officers assigned to the police station by means of drinking value; he heard the circumstances that the Defendant had no drinking value; the said Nonindicted Party 1’s female employees and the head of women’s house; and, at the same time, the Defendant continued to look at Nonindicted Party 2’s 2’s scambow and the Defendant’s seat at the time of the above investigation of the crimes; and, at the same time, he can see Nonindicted Party 1’s 2’s scambling to the right side of the Defendant’s house by means of a scambling force.”

2) The judgment of the court below

The lower court acquitted the Defendant on the ground that, as Nonindicted 1 and Nonindicted 2, who were police officials, did not present a certificate indicating their status or disclose their affiliation, name, etc., the performance of official duties was unlawful in violation of Article 3(4) of the Act on the Performance of Duties by Police Officers, and that the performance of official duties in the hand box of Nonindicted 3 and Nonindicted 2, who were police officers on the line, is also unlawful.

3) Determination of the immediate deliberation

A) The legality of performing official duties prior to the arrest of a flagrant offender

(1) Whether Article 3 of the Act on the Performance of Duties by Police Officers concerning Unexplic Examination applies

Although the prosecutor asserts that in the case of this case, the investigation is already initiated and the application of the provision of the autopsy is excluded, the prosecutor's above assertion is without merit, since the Act on the Performance of Duties by Police Officers concerning the Unexplicial Examination is applied for the following reasons.

① According to the records, around 03:05 on February 21, 2013, Nonindicted 4, who operates ○○○, requested the “△△△△△△” to provide emergency support, and Nonindicted 5, who reported 112. In the case of reporting 112, it cannot be readily concluded that the investigation agency filed a complaint or accusation under Articles 223 and 234 of the Criminal Procedure Act, and there is no material to deem that the investigation agency filed a complaint or accusation (see Articles 55 through 58 of the Regulations on the Investigation of Judicial Police Officers and the Criminal Procedure Act). As such, Nonindicted 4, who is aware of a criminal suspicion, should start the investigation and prepare a written statement about the criminal and file it with the investigation records without delay (see Article 196(2) of the Criminal Procedure Act and Article 17 of the above Regulations), and there is no reason to view that the public prosecutor conducted an investigation or conducted an investigation, including the offender, and there is no reason to view that there is no evidence to suspect that the Defendant had been no criminal suspect or suspect.

(2) The exercise and limitation of tangible power accompanied by the unexplic examination;

(A) Relevant legal principles

The issue is whether a police officer can exercise force if he/she refuses to comply with the "stopping" that is a prior measure to ask questions in an in-depth autopsy. However, the fact that Article 3(1) of the Act on the Performance of Duties by Police Officers provides that a police officer can exercise force, and if the exercise of force is not permitted in whole, if it is inevitable in that the exercise of force is not effective, the exercise of force to a certain extent is not inevitable.

However, even if exercising tangible power is permitted, it is necessary to strictly limit the allowable scope, and in accordance with the principle of proportionality, which is the principle of control over all national actions, the target person can be suspended in a reasonable manner that can be accepted by social norms within the minimum extent necessary for accomplishing the purpose in light of severity of the crime, relation with the crime, urgency of the situation, degree of suspicion, necessity of questioning, etc. in order to ask questions to the target person provided for in Article 3(1) of the Act on the Performance of Duties by Police Officers (Supreme Court Decision 2010Do6203 Decided September 13, 2012).

(B) In the instant case:

According to the evidence duly adopted and examined by the court below and the court below, the following facts are recognized:

12 Police Officers, Nonindicted 1, and Nonindicted 2 called to the scene upon receiving a report, followed by Nonindicted 1, and Nonindicted 1 and Nonindicted 2, who called to the scene, were female employees and the head of a brigade, without paying the drinking value, and tried to ask questions to the Defendant to confirm. The Defendant, without responding to the above questions, was going to the entrance of the Defendant, at once, to ask the Defendant again. Nonindicted 1’s front time to stop out of the scene, and then, the Defendant explained the situation to “Iskh, Ish, Ish? Ish? Ish? Ism? Ish? Ish? Ish? Ism? Ish? Ish? Ish? Ish? Ish?m? Ish?m?m? Ish?m?m? Ish?m?m?m?m? Ism? Ism? Nonindicted 1’s body and Ish?m?m? I asked the Defendant to arrest the Defendant’s body.

Examining the above facts in light of the above legal principles, the police officers who received the report and asked questions to the defendant suspected of being a criminal after undergoing verification procedures for witnesses, but the defendant's refusal to comply with such procedures and attempted to escape from the scene, and the exercise of such degree of tangible force was conducted in such a way that can be accepted by social norms to the minimum extent necessary for accomplishing the purpose.

(3) Violation of Article 3(4) of the Act on the Performance of Duties by Police Officers

On the other hand, even though police officers did not present their identification cards to the defendant at the time of the non-examination of the case, it is difficult to view that the police officers’ violation of the procedure under the Act on the Performance of Duties by Police Officers by the police officers who did not present their identification cards to the extent that they were illegal in the performance of their official duties by infringing the people’s freedom and rights against which the police officers’ violation of the procedure under the Act on the Performance of Duties by Police Officers was committed without presenting their identification cards even according to the statement of the defendant

B) The legality of performing official duties after the arrest of a flagrant offender

Comprehensively taking account of the evidence duly adopted and examined by the court below and the court below, it is recognized that the defendant committed an assault against the police officer, and on the other hand, the police officer suspended the defendant before questioning the defendant as a procedure for unexplosing the defendant, which constitutes legitimate performance of official duties. Thus, as long as the defendant obstructed the execution of official duties by committing an assault, such as taking a bath against the defendant as a defense against him and her, taking the breath of the police officer, etc., it is also legitimate performance of official duties to notify the defendant of the doctrine that the police officer did not disrupt the defendant and arrest the defendant as an flagrant offender in the obstruction of performance of official duties.

C) Sub-determination

Therefore, the judgment of the court below that the execution of official duties of this case is unlawful on different premise is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment.

B. The defendant (the part of the charge)

Since the execution of official duties by the defendant is lawful, the above argument by the defendant is without merit on different premise.

In addition, in full view of the statements and photographs of Nonindicted 3’s investigative agency, it is sufficiently recognized that the Defendant inflicted an injury by assaulting Nonindicted 3 as stated in the judgment of the court below, so this part of the Defendant’s assertion is without merit.

3. Conclusion

The prosecutor's appeal against the acquittal portion of the judgment of the court below is justified, and the guilty part of the judgment of the court below which is in a competitive relationship with it should be reversed and a new punishment shall be determined. Thus, without examining the defendant's assertion of unfair sentencing, the whole judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the defendant's appeal is again ruled as follows (as long as the judgment of the court below has been reversed,

The summary of the facts constituting an offense against the defendant recognized by the court and the summary of the evidence is as stated in each corresponding column, except for adding "a defendant interferes with legitimate official duties concerning the victim's 112 reporting and withdrawal, maintenance of order, criminal investigation and prevention and suppression of a crime" in the facts constituting an offense of the judgment of the court of the court below (the second 13th st of the judgment of the court of the court of the court below), and therefore, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act

1. Article applicable to criminal facts;

Article 136 (1) of each Criminal Code (Aggravated Punishment of Performance of Official Duties) and Article 257 (1) of each Criminal Code (Aggravated Punishment of Injury)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

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

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

Although the nature of the instant crime is inferior in that the Defendant used assaulting and injuring police officers in the course of performing official duties, considering all the sentencing conditions, including the fact that the Defendant appears to have committed the instant crime by drinking and contingently, and that the Defendant has no specific criminal power except for those sentenced twice to a fine by the same kind and previous department, etc.

Judges Long-term (Presiding Judge)