In a case where police officers Gap and Eul dispatched to the site after receiving a report from the residents of the same apartment as the defendant's house that they spawn at the defendant's house, enter the defendant's house without permission, enter the situation of the case before the front door, and the defendant was prosecuted for obstructing the police officer's execution of duties concerning the handling of the report of 112 case by assaulting the defendant, such as "I ambn's house", "I ambn's house," "I ambn't ambn's house," and ambn's house, and ambn't ambn's house, the case holding that police officers' arbitrary access to the defendant's house cannot be viewed as legitimate execution of official duties, and even if the defendant assaults the police officers against this,

A police officer Gap and Eul dispatched to the site after receiving a report from the residents of the same apartment as the defendant's house that they spawn at the defendant's house, enter the defendant's house without permission, and asked the defendant into the situation in front of the entrance, and the defendant was prosecuted with the charge that he interfered with the police officer's execution of duties concerning the handling of the reported case by assaulting the defendant's 112 victim's spawn and spawn at the bar.

In light of the fact that police officers did not possess or present a warrant against the defendant at the time, there is no reason to regard the defendant's residence as the place immediately after the crime was committed, and there is no ex post facto warrant for seizure, search, and inspection, and police officers did not have any means when they arrive in the front of the defendant's residence, and the fact that "the voice or dogbing of the defendant's seat" did not go against the reporter's report, and that it did not go against the reporter's report that "the voice or dogbing of the defendant's seat" did not go against the reporter's request for identification of the police officer Gap's identity, etc., it is difficult to view that the dangerous situation occurred solely on the ground that the reporter's report requires a doubt about the authenticity of the report, such circumstance does not constitute a case of imminent harm to human life, body, or property, and there is no other reason to view that the police officers' arbitrary access to the defendant's residence does not constitute a legitimate act of execution of official duties, and thus, it does not constitute a crime of obstruction of performance of official duties.

Article 136(1) of the Criminal Act; Article 7(1) of the Act on the Performance of Duties by Police Officers; Articles 199(1), 215(2), 216(3), and 325 of the Criminal Procedure Act

Defendant

Prosecutor

Delay et al.

Attorneys Lee Dong-sung et al.

Busan District Court Decision 2018Ma114 decided October 17, 2018

The prosecutor's appeal is dismissed.

1. Summary of the facts charged

On December 4, 2017, at around 07:35, the Defendant committed violence, such as assaulting Nonindicted 1 to ask questions about the circumstances of the instant case from Nonindicted 1, the security guards belonging to the ○○○○ Police Station △△ Police Station, who called “packers,” and called “packers, 10cm (10cm x 16cm x 16cm) on the right side of the said police officer, leading to the said police officer, and assaulting Nonindicted 1 of the said police officer’s 112 reported handling of the instant case, which was called out after receiving a report from 117 Dong 404 and 404 inside the Defendant’s residence.

2. The judgment of the court below

The court below found the defendant not guilty on the ground that police officers did not possess or present a warrant against the defendant, and did not have any circumstance to see the defendant as a flagrant offender or quasi-flagrant offender without permission of the defendant. The above act of the police officers cannot be viewed as a legitimate performance of official duties, and thus, they cannot be viewed as a legitimate performance of official duties.

3. Summary of grounds for appeal;

Whether the execution of official duties is legitimate or not shall be determined objectively and reasonably based on the specific situation at the time of the act, and it shall not be determined based on pure objective criteria ex post facto.

In light of the current situation at the time of the instant case, it constitutes a crime place immediately after the crime was committed, or a person’s life, body, or property is likely to enter pursuant to Article 7(1) of the Act on the Performance of Duties by Police Officers. Thus, the police officer’s act of entering the Defendant’s residence is lawful.

Nevertheless, the judgment of the court below, which held that the execution of duties by police officers who had access to the defendant's residence is not legitimate retroactively based on only the facts established ex post facto and as a result, is erroneous in the misunderstanding of legal principles, which affected

4. The judgment of this Court

A. Relevant regulations and legal principles

1) 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, the term "legal performance of official duties" refers to not only the abstract authority of a public official, but also the legal requirements and methods for specific performance of official duties. Thus, even if a person commits assault or intimidation against a public official performing an act of lack of legitimacy, it shall not be subject to the crime of obstruction of performance of official duties (see, e.g., Supreme Court Decision 2008Do9926, Feb. 12, 2009). Furthermore, whether a certain official duties of a public official belonging to abstract authority is legitimate shall be determined objectively and reasonably based on the specific situation at the time of the act, and it shall not be determined by pure objective criteria (see, e.g., Supreme Court Decision 2011Do4763, Aug. 23, 2013).

2) Meanwhile, compulsory measures with respect to investigation are not taken (proviso of Article 199(1) of the Criminal Procedure Act), and when necessary for criminal investigation, a judicial police officer may seize, search, or inspect evidence by a warrant issued by a judge of the district court upon the request of a prosecutor who is requested by the judge of the district court (Article 215(2) of the Criminal Procedure Act). However, in cases where it is impossible to obtain a warrant issued by a judge of the court because of urgency at the scene of the crime or immediately after the crime, seizure, search, or inspection without a warrant may be conducted without delay. In such cases, a post facto warrant shall be obtained without delay (Article 21

3) In addition, according to Article 7 of the Act on the Performance of Duties by Police Officers, a police officer may enter another person’s land or building within necessary limits at reasonable discretion if it is deemed necessary to prevent danger or injury or to rescue a victim when a dangerous situation has occurred. According to Article 5 of the Regulations on Police Visit and Security Examination, a police officer’s visit may be conducted with the consent of the other party when there is a request for visit or when it is deemed necessary by the chief of a police station or district commander.

B. In the instant case

According to the evidence duly admitted and investigated by the court below, the following facts are recognized:

1) Around 07:28 on the day of the instant case, the Defendant filed a 112 report to the effect that the residents of the same apartment as the Defendant were wraped by his father and children in Daegu (location omitted) where the Defendant’s residence was the Defendant. Nonindicted 2 and Nonindicted 1 sent the said report to the instant site immediately and arrived at around 07:38 at the site.

2) The above police officers did not have any sound at all at the time of arrival at the instant site, and there was no sign at all at the time of the arrival of the Defendant’s dwelling. There was no sign at any time of the initial race of the Defendant’s dwelling.

3) Accordingly, the police officer Nonindicted 1 confirmed the content of the report by sending a phone again to the reporter, and the reporter said that the sound was sleeped while the phone calls and the sound was sleeped, and the police officer’s failure to talk with the reporter that the “to talk about why he would have to talk,” any defect in the police officer’s location to check the reporter’s location was no longer possible (the police officer stated to the effect that the police officer was in the possession of a phone call and that the reporter was able to think that he would have been drunk).

4) During that process, Nonindicted 2, a police officer Nonindicted 2 opened the door door of the Defendant’s residence and entered the Defendant’s residence without the Defendant’s permission. Nonindicted 1, a police officer, also went to the Defendant’s residence without the Defendant’s permission, and Nonindicted 2, a police officer, without the Defendant’s permission, went to the Defendant’s residence without the Defendant’s permission.

5) Since then, in front of the entrances of the Defendant in his residence, conversations between the police officer and the Defendant to the effect that “the person was dispatched after receiving a report, and there was no problem in the house,” and “Is Dos Dos Dos Dos Dos Dos Dos

6) 이후에도 경찰관들은 피고인의 집에서 퇴거하지 않은 채 피고인에게 범죄 여부를 추궁하는 취지의 대화를 하던 중, 피고인이 유리병을 집어 들고 던지려는 시늉을 2, 3번 하자 경찰관 공소외 1이 집 안으로 들어가 이를 제지하려고 하였고, 그 찰나에 피고인이 유리병을 던지며 경찰관 공소외 1에게 왼손 주먹을 휘두르면서 이 사건 폭행이 일어났다.

7) At the time of the instant assault, only two mothers were the Defendant and the Defendant’s residence. At the time of the instant assault, the Defendant suffered from dissatisfying satisfying, and the Defendant satisfying alone, and the neighbors were also misunderstandings about the instant assault.

8) On December 5, 2017, the day after the instant case occurred, the prosecutor Nonindicted 3 dismissed the application for a warrant on the grounds that “ even if the details of 112 declaration are different from objective facts, and there is no situation that can be seen immediately after the occurrence of the crime, the police officer voluntarily left the place of residence and suffered from mental illness, and there is a reason to consider the circumstances of the crime.”

In light of the above legal principles, the police officers did not possess a warrant against the defendant at the time or present it. ② There was no reason to regard the defendant’s residence as the place immediately after the crime was committed. Moreover, there was no ex post facto warrant for seizure, search, and inspection. ③ The police officers did not have any person at the time when the defendant’s residence arrives in front of the defendant’s residence. ③ The police officers did not have any person at the time, and this did not appear to have reached the reporter’s report that “the voice disputing the money and the opening are rashing,” and it was difficult to view that it was difficult to view that the authenticity of the report, such as the reporter’s failure to comply with Nonindicted 1’s request for identification of the identity, and thus, it was difficult to view that there was a danger and injury to human life, body, or property when the report was made. Accordingly, it cannot be deemed that there was a request for visit by the defendant or consent of the police officers to enter the residence of the defendant at the time of this case, even if the police officers did not constitute a legitimate reason for execution of official duties.

Therefore, the prosecutor's argument that it is a legitimate performance of official duties is without merit.

5. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judge final (Presiding Judge)