2016 Highest 3997 Injury, obstruction of performance of official duties

A person shall be appointed.

OO (prosecutions) and ○○○ (Public trial)

Attorney ○○○ (Non Line)

March 29, 2017

The defendant shall be innocent.

Indictment

On July 20, 2016: around 45, the Defendant: (a) around 02: (b) around 02:45, at the top of ○○○○○○○○○○○○○○○○○○○○, a victim, who was called for, and was reported by the police officer by exercising violence while taking advantage of the domestic violence while getting on and off a taxi with the Defendant’s third village B; (b) at the time when the police officer was arrested B, who was in receipt of a report by using violence, she took a bath to the b, and was able to exercise violence; and (c) the police officer assigned to the ○○○○○○○○○○○○○○○○○○, a police station, a police officer called for, and called for, the victim, was able to stop the Defendant; (d) the victim’s hand boo on a one-time basis; and (d) the victim’s b) took care of the victim’s chest and the police box, etc., who continuedd the victim’s’s duty to prevent and stop.

Defendant’s argument

The police attempted to arrest the defendant without good cause, and the police tried to have the neck of the police in the course of resistance, and the defendant did not interfere with the legitimate execution of official duties by assaulting the police first.

Judgment

1. Organization of the issues;

A. 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 is legitimate. Here, legitimate performance of official duties refers to not only where the act belongs to the abstract authority of a public official, but also where the specific requirements and methods are met (see Supreme Court Decision 9Do4341, Jul. 4, 2000). In addition, in a situation where it is not recognized that the police officer met the requirements as a flagrant offender, if the police officer attempted to arrest or force the refusal of accompanying, it cannot be deemed a legitimate performance of official duties. In the process of resisting the arrest, causing bodily injury to the police officer is a act for deviating from the current unfair infringement on the body of a public official due to illegal arrest, and thus, it constitutes legitimate self-defense (see Supreme Court Decision 2001Do300, May 10, 2002, etc.).

B. Therefore, the key issue of the instant case is whether the Defendant committed an assault against C in order to resist the police officer’s son’s son, who was aware of his son while she talked with the police as described in the instant facts charged, was arrested as a flagrant offender in the crime of obstruction of performance of official duties, or whether the police attempted to arrest the Defendant without meeting the requirements for arrest.

2. Facts of recognition;

According to the records, the following facts are recognized.

A. The Defendant and B were on a taxi operated by D at the date and time as indicated in the facts charged, and at the same place as indicated in the foregoing facts charged, and there was a trial cost related to the taxi fare between B and D. B began to assault D on the back of the taxi, and the Defendant got out of the taxi rather than complying therewith.

B. E and two other persons (hereinafter referred to as the "offenders of this case") who passed the above bee at the bee site were witnessed and went to the above cab, and there was a dispute between the defendant and the defendant by misunderstanding that the defendant who was on the cab was assaulting D was also the victim of the assaulting D.

C. D reported the assault by phone 112, and the police officer F and G were called first to the police officer F and B, separated D from D and B, and heard their statements from them. The police officer C entered the said site at the latest to hear the dispatch of F during patrol and to support F during patrol, and the Defendant and E continued a dispute at the time when C arrives at the site.

D. Even after F et al. heard the statements made between B and D, the dispute was continued between the Defendant and the instant persons, and D explained that the said persons and the police were not assaulted by the Defendant.

3. Determination of facts charged

C는 수사기관 및 이 법정에서, 피고인이 행인들에게 달려들려고 하여 이를 제지하자 손목을 꼬집고 정강이를 발로 찼다는 취지로 진술하였고, F는 경찰에서 조사 받으면서 피고인이 C의 손목을 꼬집고 정강이를 발로 차는 것을 목격하였다는 취지로 진술하였다. 또한, 피고인은 경찰에서 조사 받으면서, 피고인이 행인들에게 죽여버린다고 소리를 지르자 경찰이 이를 제압하기 위하여 피고인의 손목을 잡았고, 이에 피고인이 그 경찰관의 손목을 꼬집었다고 진술하고 있기는 하다 .

However, in full view of the following facts acknowledged by the record, it is difficult to recognize that the defendant first assaulted the police officer, and rather, the police forced the defendant, who does not have an obligation to attend the investigation agency, to board the patrol boat and accompany the police box, and the defendant seems to have resisted.

A. F made a statement to the effect that the Defendant did not directly witness the Defendant’s assault in this Court, and that C was deemed to have been assaulted by “A” and “A”, and that C was aware of the assaulted by the Defendant, and reversed the statement made by the police.

나. E는 이 법정에서, 피고인이 이 사건 행인들에게 다가오려고 하여 경찰관이 피고인의 옆에 서서 피고인을 잡으며 제지하였고, 이에 피고인이 하지 말라는 시늉을 하며 몸을 비틀어 경찰관을 뿌리치려고 하였을 뿐 손으로 경찰관을 뿌리치지는 아니하였고 , 피고인이 경찰관의 손목을 꼬집거나 발길질을 하는 모습을 보지도 못하였다고 진술하였다. 당시 E는 피고인과 가까운 거리에서 피고인의 행동을 지속적으로 지켜보았던 것으로 인정되고, 앞서 본 바와 같이 피고인과 심한 언쟁을 하였던 E가 피고인에게 유리한 진술을 할 아무런 이유도 없다 .

C. D also stated that it was consistent in the investigative agency and this court that the defendant did not see that he did not assault the police. Also, D made the following statements in this court, which is considerably consistent with the defendant's statement that the police attempted to forced the defendant to board the patrol boat without justifiable grounds and resisting the defendant. In other words, although the police requested the defendant to accompany him to the police box to investigate B's assault case, the defendant did not assault B, and the defendant refused to do so. Despite the defendant's refusal, the police officer attempted to take the defendant on the patrol boat and arrested the defendant.

라. C는 수사기관에서는 피고인이 손목을 꼬집고 정강이를 찼다고 진술하다가 이 법정에서는 손목을 꼬집힌 시점은 기억이 나지 않는다는 취지로 진술을 번복하였다. 또한, C는 경찰에서 " 피고인이 행인들과의 시비를 중단하고 순찰차에 타려다가 다시 행인들에게 시비를 걸기 시작하였고, 이에 피고인의 손목을 잡으며 순찰차에 타라고 하자 손목을 꼬집고 발로 정강이를 찼다 " 라고 진술하였는바, C의 진술에 의하더라도, 피고인이 먼저 경찰을 폭행한 것이 아니라, 경찰이 피고인을 순찰차에 강제로 태우려고하여 이에 저항한 것으로 볼 여지가 있다 .

Conclusion

Therefore, among the facts charged in this case, since the obstruction of performance of official duties falls under a case where there is no proof of crime, under the latter part of Article 325 of the Criminal Procedure Act, the injury does not constitute self-defense under Article 21(1) of the Criminal Act, and thus, the defendant is acquitted under the former part of Article 325 of the Criminal Procedure Act, but the defendant does not consent to the public announcement of the judgment of innocence, and therefore, it is so decided as per Disposition by the assent of not to declare the purport

Judges Kim Jong-ok