[1] Procedures to force a driver to conduct a alcohol test, and whether a person can be punished for failing to comply with a request for a alcohol test made in an illegal arrest (negative)

[2] The lawful requirements of a voluntary act

[3] The case holding that if a judicial police officer's order to accompany a defendant to an investigative agency constitutes a de facto forced behavior, that is, an illegal arrest, a request for a measurement of drinking conducted in such a situation is also unlawful, and thus, even if the defendant did not respond to a request for a measurement of drinking, the crime

[4] The meaning of "legal performance of official duties" under Article 136 of the Criminal Code

[5] The case denying the establishment of obstruction of performance of official duties in a case where a police officer assaults a police officer in the course of resistance against a police officer who demanded a drinking measurement without complying with legitimate procedures

[1] In light of the provisions of Article 44(2) and Article 150 subparag. 2 of the Road Traffic Act, the measurement of alcohol conducted solely on the ground that there are reasonable grounds to recognize that a driver was a driving under the influence of alcohol even though it is not necessary to ensure the safety of traffic and prevent danger. The provisions of the Road Traffic Act refer to an investigation procedure to collect evidence about the crime of driving under the influence of alcohol, and the provisions of the Road Traffic Act cannot be the basis for compulsory measures to measure alcohol. Therefore, in order to compel the driver under the influence of alcohol, the procedure under the Criminal Procedure Act pertaining to compulsory measures under investigation shall be followed, and the compulsory act conducted without disregarding such procedure constitutes an illegal arrest. In a case where a request for a alcohol alcohol measurement was made under an illegal arrest, it is inappropriate to evaluate the legitimacy of the request for a alcohol measurement as it was made continuously in order to collect evidence about the crime of driving under the influence of alcohol, and thus, it is difficult to deem that a driver under the Road Traffic Act has an obligation to comply with the request for a alcohol measurement as a whole.

[2] Article 199(1) of the Criminal Procedure Act provides that "Any investigation necessary to achieve the purpose of an investigation may be conducted: Provided, That compulsory measures shall be limited to cases where there are special provisions in this Act, and they shall be conducted to the minimum necessary extent." Thus, the investigator's accompanying the suspect to the investigative agency in the course of the investigation shall be restricted in real freedom of body of the other party and in actual conditions similar to the arrest. Although the investigator is placed in a similar state with the other party's consent in the process of the investigation, it is not institutional and practical means to suppress accompanying the other party without the warrant, and it is highly likely that decentralization is not guaranteed, as well as there is no other method to suppress accompanying the suspect without the warrant, and there is a high possibility that the Constitution and the Criminal Procedure Act still provide the other party with various rights guarantee devices to the suspect arrested and detained for the reason that it is prior to the regular arrest and detention stage, and if the investigator merely requests the police officer to accompany the suspect at any time, it shall be applied to the police officer's voluntary request for accompanying to the suspect at any time, etc.

[3] The case holding that if a judicial police officer's order to accompany a defendant to an investigative agency constitutes a de facto forced behavior, that is, an illegal arrest, a request for measurement of drinking conducted under such illegal arrest is also illegal, and thus, even if the defendant did not respond to a request for measurement of drinking, it does not constitute a crime of refusal

[4] 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 is legitimate. Here, legitimate performance of official duties refers to not only the abstract authority of a public official, but also the case where the act satisfies the legal requirements and methods for specific performance of official duties.

[5] In a case where an act of assaulting a police officer in the course of resistance against a police officer who demanded a drinking measurement without complying with legitimate procedures, and committed a minor injury, the case holding that the crime of obstruction of performance of official duties is committed on the ground that the act of assault by the defendant is committed with intent to escape from the current illegal invasion of his/her body, such as the illegal arrest by a police officer and the request for measurement of illegal drinking accordingly

[1] Articles 44(2) and 150 subparag. 2 of the Road Traffic Act, Article 199(1) of the Criminal Procedure Act / [2] Articles 199(1) and 200(1) of the Criminal Procedure Act, Article 3(2) of the Act on the Performance of Duties by Police Officers / [3] Articles 44(2) and 150 subparag. 2 of the Road Traffic Act, Article 199(1) of the Criminal Procedure Act / [4] Article 136(1) of the Criminal Act / [5] Articles 20, 21(1), and 136(1) of the Criminal Act

[1] [2] Supreme Court Decision 2005Do6810 Decided July 6, 2006 (Gong2006Ha, 1572) / [1] Supreme Court Decision 2004Do8404 Decided November 9, 2006 (Gong2006Ha, 2123) / [4] Supreme Court Decision 99Do4341 Decided July 4, 200 (Gong200Ha, 1851), Supreme Court Decision 200Do3485 Decided April 12, 2002 (Gong202Sang, 1186)

Defendant

Western Changwon

Attorney Lee Tae-tae

The defendant is innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

A. Grounds for refusing to measure drinking alcohol

Around 06:40 on February 21, 2009, the Defendant, while drinking alcohol with Non-Indicted 1, 2009, had Non-Indicted 1 drive the said private taxi (vehicle number omitted) to Non-Indicted 1, who caused contact while driving the said private taxi, and the Defendant driven the said private taxi at the scene of the said accident up to approximately 1.5 km on the upper end of 682-1, Daegu Northern-gu, Seoul Special Metropolitan City. The police officers dispatched to the scene of the said accident confirmed that the said private taxi was driven by the Defendant, and the Defendant was present at the office of the traffic accident investigation department of the Daegu Northern Northern Police Station. The Defendant did not comply with the request of Non-Indicted 1 for drinking alcohol without reasonable grounds to deem that the Defendant was aware of the knowledge, smell, and drinking, and that the Defendant did not comply with the request for drinking alcohol during the period from 100 to 300:0 on May 21, 201.

B. The obstruction of performance of official duties and injury

On February 21, 2009, at around 10:28, the Defendant, Nonindicted 1, the police officer of the Daegu Northern Police Station, who demanded a drinking test at an office in charge of traffic accident investigation of the Daegu Northern Police Station, expressed his desire to “Is the victim Nonindicted 1, who was the above police officer, to see that I would die at night in the night road. N’s family members will also die.” The Defendant dumped, pushedly, and assaulted the bridge of Nonindicted 1. The Defendant interfered with the victim’s legitimate performance of duties in relation to the control of drinking driving, and at the same time, obstructed the victim’s smooth performance of duties in relation to the control of drinking alcohol, and committed cump saton

2. Facts recognized;

According to the evidence duly adopted in this case, Nonindicted Party 1 and Nonindicted Party 2, the police officer of the Daegu Northern Police Station, who had no knowledge of the fact that they had been under the influence of Nonindicted Party 1, left the scene of the accident while carrying out a traffic accident-related investigation by Nonindicted Party 1, the police officer of the Daegu Northern Police Station. However, Nonindicted Party 1 and Nonindicted Party 1 asked the Defendant to contact with the Defendant if he was identified at the Defendant’s residence, and Nonindicted Party 3 and Nonindicted Party 4, the police officer of the Eastcheon Police Station, who had been under the influence of alcohol at the time of the investigation. However, Nonindicted Party 1 and Nonindicted Party 3 asked Nonindicted Party 3 to leave the scene of the accident, and asked Nonindicted Party 3 to leave the police station to find out that they had no suspicion that they could have been under the influence of drinking, and to inform Nonindicted Party 3 of the fact that they would have been under the influence of drinking, without any explanation about the Defendant’s appearance.

3. Whether the person has committed a violation of the Road Traffic Act;

A. Article 44(2) of the Road Traffic Act provides that “When deemed necessary for the safety of traffic and the prevention of danger and there are reasonable grounds to recognize that a person driving a motor vehicle, etc. while under the influence of alcohol in violation of the provisions of paragraph (1), police officers may take a breath test on whether the person is under the influence of alcohol. In this case, the driver shall comply with a breath test by a police officer.” Article 150 Subparag. 2 of the Road Traffic Act provides that “a person with reasonable grounds to recognize that a person under the influence of alcohol is under the influence of alcohol and fails to comply with the measurement by a police officer pursuant to the provisions of Article 44(2) of the Road Traffic Act shall be punished by imprisonment for not more

In this context, the measurement of alcohol conducted solely on the ground that there is a considerable reason to recognize the driving of a motor vehicle driving without any need for traffic safety and prevention of danger has meaning as an investigation procedure to collect evidence of the criminal act of driving a motor vehicle driving already conducted. Since the provisions of the Road Traffic Act cannot serve as the basis for compulsory measures to measure alcohol, in order to compel the driver to do so for the aforementioned measurement, the procedure of the Criminal Procedure Act regarding compulsory measures under investigation shall be followed, and the compulsory driving conducted without disregarding such procedure constitutes an illegal arrest. In a case where the request for measurement of alcohol was made under an illegal arrest, it is inappropriate to individually evaluate the legitimacy of the request for measurement of alcohol since the illegal arrest for the request for measurement of alcohol was continued to collect evidence of the criminal act of driving a motor vehicle, and therefore, it is difficult to deem that the request for measurement of alcohol was made in a series of processes as a whole. Thus, even if there is a considerable reason to recognize the driving of a motor vehicle driving a motor vehicle, it cannot be deemed that the driver has a duty of refusal to comply with the request for measurement of alcohol by 104.

B. In addition, Article 199(1) of the Criminal Procedure Act provides that "Any investigation necessary to achieve the purpose of an investigation may be conducted: Provided, That compulsory measures shall be limited to the case where there are special provisions in this Act, and they shall be conducted to the minimum necessary extent." Thus, in the course of an investigation, an investigator's accompanying a suspect to the investigative agency in the form of obtaining consent from the party concerned is practically restricted and actually placed in a situation similar to the arrest. Although it is difficult for the investigative agency to suppress accompanying the suspect without a warrant, it is not systematically and practically voluntary as well as systematically because there is no other method to restrain accompanying the suspect without a warrant, and it is highly likely that there is a result contrary to the above principles of the Criminal Procedure Act, such as the provision of various rights guarantee devices granted to the suspect arrested and detained on the ground that it is still prior to the regular arrest and detention stage, and thus, it is reasonable to apply the aforementioned legal principles to the police agency's voluntary request for accompanying the suspect at least 20, which is a place where the police officer can freely leave the suspect or suspect at any time during the investigation procedure.

C. In the instant case, the health team, Nonindicted 3, and Nonindicted 4, a police officer, did not give a correct explanation to the Defendant as to the purpose of accompanying the police station, and there was no notice to the effect that two police officers were accompanying the Defendant only after the Defendant stated about about 30 minutes or more, and that they could refuse to accompany. If the Defendant notified the Defendant that the purpose of accompanying was to measure drinking, it would be apparent that the Defendant would have not complied with it. In addition, if the Defendant did not conduct an investigation for the purpose of accompanying the Defendant in the process of accompanying, it would be apparent that the Defendant would not have complied with it, and if the Defendant did not conduct an investigation for the purpose of accompanying, it would be good that he would return to the situation. In addition, Nonindicted 3, and Nonindicted 4, a police officer, who was a police officer, did not have any relation to the scene of the crime, and Nonindicted 1’s gathering of a defendant who was accompanied by the Defendant at the scene of the accident, and Nonindicted 1’s demand for accompanying the police station on February 21, 20000, etc.

Thus, it shall be deemed that the request for a drinking test made under an illegal arrest is also illegal, and the defendant shall not be punished as a violation of the Road Traffic Act concerning the refusal of a drinking test on the ground that the defendant did not respond to such illegal request for a drinking test.

4. Whether obstruction of performance of official duties or injury is recognized;

A. 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 is legitimate. Here legitimate performance of official duties refers to not only where the act belongs to the abstract authority of the public official, but also where the act satisfies the legal requirements and methods concerning specific performance of official duties (see Supreme Court Decision 9Do4341 delivered on July 4, 200, etc.).

Thus, the police officer's demand for a drinking test against the defendant without complying with due process of law is illegal execution of official duties. Since the defendant's assaulted the police officer to refuse to take a drinking test, the crime of obstruction of performance of official duties is not established. Thus, the crime of obstruction of official duties against the defendant is not established.

B. In addition, the injury suffered by the victim occurred when the defendant resisted against the police officer who forced the defendant to take an illegal drinking test for the purpose of escaping from the above situation, and the degree of the injury is relatively minor as seen earlier, and the above act committed by the defendant to escape from the current unfair infringement of his body, etc. such as illegal arrest and the request for the measurement of drinking, etc. resulting from the illegal arrest and the above act committed by the defendant to escape from the current unfair infringement of his body, etc. is deemed to be an act of self-defense or a legitimate act, in light of all the circumstances, such as the circumstances leading up to the act, purpose and means, and the intent

5. Conclusion

Thus, since each of the facts charged in this case constitutes a case where there is no proof of the crime, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the defendant is notified of the summary of the judgment under Article 58 (2) of the Criminal Act. It is so decided as per

Judges Mao