[1] When a judicial police officer, etc. arrests a suspect with a warrant of arrest, and the presentation or notification of a warrant of arrest should be made

[2] Meaning of “legal performance of official duties” in the crime of obstruction of performance of official duties / Whether a police officer’s act of arresting a suspect by force without complying with due process constitutes legitimate performance of official duties (negative), and whether an act of causing bodily injury to a police officer constitutes self-defense in the course of resisting against a police officer’s illegal arrest (affirmative)

[3] In a case where police officers were indicted of obstruction of performance of official duties and injury on the ground that they had a warrant of arrest, and attempted to arrest the defendant under suspicion such as Mebatoposis medication, etc., and that the defendant inflicted an injury on police officers during the course of resistance to the arrest, the case affirming the judgment below which acquitted the police officers on the ground that the police officers were not guilty on the ground that the arrest warrant was presented before the police officers went to the exercise of their real power for arrest, and that the arrest warrant was sufficient to give notice of the domina principle after the arrest, the first act of arresting the police officers was difficult to be deemed legitimate performance of official duties

[1] A judicial police officer, etc. shall present an arrest warrant to the suspect in order to arrest the suspect with a warrant of arrest (Articles 200-6 and 85(1) of the Criminal Procedure Act), and give him/her an opportunity to defend himself/herself by presenting the warrant of arrest to the suspect (Article 200-5 of the Criminal Procedure Act). The presentation or notification, etc. of the warrant of arrest shall, in principle, be in advance before entering the exercise of the real force for the arrest. However, in cases where a criminal suspect who runs away away from the military or is under de facto suppressions a criminal suspect who runs away or goes against violence, it shall be done in the course of attaching or suppressing him/her, or if not, after putting or suppressing him/her once.

[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 lawful. This refers to a case where the lawful performance of official duties is limited to the abstract authority of a public official, and the specific performance of official duties satisfies the legal requirements and methods regarding the performance of official duties. If a police officer seeks to arrest a suspect in real force without complying with due process of law, it cannot be deemed a legitimate performance of official duties if the police officer attempted to arrest a suspect without complying with due process of law. In addition, if the arrest of a police officer goes beyond legitimate performance of official duties and is deemed to be illegal arrest, the act of injuring a police officer during the process of resisting the suspect from arrest is an act to escape from the current unfair infringement on the body caused

[3] In a case where police officers were indicted of obstruction of performance of official duties and injury on the ground that they had a warrant of arrest and attempted to arrest the defendant under suspicion, such as Mebatoposis medication, etc., and that the defendant inflicted an injury on police officers during the course of resistance to this, the case affirming the judgment below which acquitted the defendant on the charges of obstruction of performance of official duties and injury on the ground that, in a case where the defendant showed the attitude of the police officers to flee with the police officers, or first exercised violence and did not oppose the police officers, etc., the police officers had enough time to present a warrant of arrest before moving to the exercise of force for arrest and give notice of the principle, but the first act of mooring prior to the arrest cannot be deemed legitimate official duties.

[1] Articles 85(1), 200-5, and 200-6 of the Criminal Procedure Act / [2] Articles 21, 136, and 257 of the Criminal Act / [3] Articles 21(1), 136(1), and 257(1) of the Criminal Act; Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2007Do1006 Decided February 14, 2008 / [2] Supreme Court Decision 99Do4341 Decided July 4, 200 (Gong2000Ha, 1851) Supreme Court Decision 201Do3682 Decided May 26, 201 (Gong201Ha, 1367)

Defendant

Defendant and Prosecutor

Attorney Kim Jong-soo

Daegu District Court Decision 2017No133 decided June 21, 2017

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have found the Defendant guilty of both violation of the Narcotics Control Act and larceny among the facts charged in the instant case on the grounds indicated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on

In addition, the argument that the lower court erred by misapprehending the legal doctrine by infringing on the essential contents of the principle of balanced criminal punishment or the principle of responsibility, constitutes an allegation of unfair sentencing. However, under Article 383 Subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years is declared, an appeal on the ground of unfair sentencing is allowed. As such, in this case where the lower court rendered a minor sentence against the Defendant, the argument that the sentencing of the

2. As to the Prosecutor’s Grounds of Appeal

To arrest a suspect with a warrant of arrest (Articles 200-6 and 85(1) of the Criminal Procedure Act), a judicial police officer, etc. shall present a warrant of arrest to the suspect (Article 200-6 and Article 85(1) of the same Act), and give him/her an opportunity to defend himself/herself by presenting reasons for the arrest and appointment of a defense counsel (Article 200-5 of the Criminal Procedure Act). Such presentation or notification of a warrant of arrest shall, in principle, be in advance before entering an exercise of real force for the arrest. However, in cases where a criminal suspect who runs away from Korea or is under de facto suppressions a criminal suspect against violence, it shall be put into or under restraint, or if not, after being put into or under pressured (see Supreme Court Decision 2007Do1006, Feb. 14, 2008, etc.).

The crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established only where the performance of official duties by a public official is legitimate. The lawful performance of official duties refers to not only where the act belongs to the abstract authority of a public official, but also meets the legal requirements and methods regarding specific performance of official duties. If a police officer wants to arrest a suspect in the real force without complying with due process, it cannot be deemed a legitimate performance of official duties. In addition, if the police officer’s arrest act goes beyond legitimate performance of official duties and is bound to be illegal arrest, it cannot be deemed that the police officer’s act of arresting the suspect was illegal arrest. In addition, the act of injuring a police officer in the course of resisting the suspect against his/her arrest is an act for deviating from the current illegal infringement on his/her body due to illegal arrest, and thus, it constitutes legitimate self-defense (see, e.g., Supreme Court Decisions 9Do4341, Jul. 4, 200; 201Do3682, May 26,

The court below affirmed the first instance court's judgment convicting the police officers of obstruction of the performance of official duties and injury among the facts charged of this case on the ground that it is difficult for police officers to present arrest warrant before moving to the exercise of real force for arrest and to notify the doctrine of failed to give notice of it, such as the defendant's attempt to flee with police officers, or did not oppose the police officers' exercise of force first, the court below failed to hold the first instance court's judgment convicting the police officers of obstruction of the performance of official duties and injury and found them not guilty of this part of the facts charged.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

3. Conclusion

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

Justices Jo Hee-de (Presiding Justice)