[1] The meaning of "Assault" as referred to in the crime of obstruction of performance of official duties and whether it is necessary to establish a result of obstructing performance of official duties (negative) / The meaning of "performance of official duties" as referred to in the crime of obstruction of performance of official duties

[2] In a case where the defendant was prosecuted for interfering with the police officer's execution of duties concerning the handling of report 112 by assaulting the defendant, such as assaulting the crime of obstruction of performance of official duties, execution of duties, requirements for arrest of flagrant offenders, etc., in a case where the court below found the defendant not guilty of the facts charged, and erred by misapprehending the legal principles as to the assault of obstruction of performance of official duties, execution of duties, arrest of the defendant as a flagrant offender, etc., where the police officer Eul, who was called upon receiving the 112 report and called up to Gap, was a police officer Eul's attempt to control him, who was subject to the 112 report.

[1] The crime of obstruction of performance of official duties under Article 136 of the Criminal Code is established when an assault or a threat is committed against a public official performing official duties, and the assault here is sufficient to exercise the force against the person, and it does not necessarily require that the person's body is harmed. In addition, as an abstract dangerous offender, the crime of obstruction of performance of official duties does not require that the crime of obstruction of performance of official duties requires the result of obstructing the performance of official duties. Meanwhile, in the crime of obstruction of performance of official duties, the term "performance of official duties" does not refer only to the case where a public official performs the act directly necessary for the performance of official duties, but includes the case where a public official is in the working state for the performance of official duties, and depending on the nature of the official duties,

[2] In a case where the defendant was prosecuted for interfering with the police officer's 112 report processing by assaulting the police officer's 112 when the police officer Eul, who was called after receiving 112 report, committed an assault against the public official's use of his/her force to control him/her, making him/her one stop his/her chest at one time, continuing to arrest the defendant as an offender in the act of assaulting him/her, and walking the police officer two times at the back of the patrol post, the case holding that the judgment of the court below was erroneous in the misapprehension of legal principles as to the charges of obstruction of performance of official duties and the credibility of the witness's statement at the time of arresting him/her on the ground that the defendant's act of smuggling, who was called after receiving 112 report processing, committed an assault against the public official's exercise of force, and that there was no need to directly arrest him/her, and that there was no possibility that he/she may destroy evidence or destroy evidence at the time of arrest.

[1] Article 136 of the Criminal Act / [2] Article 136 (1) of the Criminal Act, Articles 211, 212, and 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2005Do6725 Decided October 28, 2005, Supreme Court Decision 2008Do919 Decided January 15, 2009 (Gong2009Sang, 197)

Defendant

Prosecutor

Law Firm Il, Attorney Han Sung-sung

Jeonju District Court Decision 2017No887 decided December 8, 2017

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

The grounds of appeal are examined.

1. A. The summary of the facts charged in the instant case is as follows: (a) around 09:55 on October 13, 2016, the Defendant was punished for a dispute due to Nonindicted 1 and parking problems at the underground parking lot of ○○ apartment, △△dong, located in the front city (location omitted); (b) Nonindicted 2, a slope of the front city Police Station, called upon receiving the 112 report, proposed the Defendant to stop Nonindicted 1; and (c) he was faced with the Defendant’s control; (d) Nonindicted 2’s chest by hand, who tried to arrest the Defendant as a flagrant offender and to board the back seat of the patrol seat at two times, thereby hindering the police officer’s legitimate performance of duties regarding the handling of reports by assaulting the part of Nonindicted 2, who tried to take the Defendant into the front seat of the patrol seat at two times in two parallels.

B. As to this, the lower court determined that the crime of obstruction of performance of official duties cannot be established on the ground that: (a) it is difficult to view that the Defendant’s single chest of Nonindicted 2, a police officer Nonindicted 2, was an act during the process of carrying out his duties concerning the handling of Nonindicted 2’s report; and (b) it cannot be readily concluded that the said act was an act that could interfere with the performance of duties by public officials; (c) there is a doubt that the Defendant resisting the part of Nonindicted 2’s mouth of the police officer, while resisting to arrest the flagrant offender, and that there was a fact that the Defendant respondeded twice to walk the two times due to the winter; and (d) it is difficult to view that the Defendant had an urgent circumstance for immediately arresting the Defendant even

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. (1) The crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established when an assault or intimidation is committed against a public official who performs his duties, and the assault here is sufficient to exercise the force against a person and must be against his body. In addition, the crime of obstruction of performance of official duties does not require the result of obstructing the performance of duties specifically as an abstract dangerous offender (see Supreme Court Decision 2005Do6725, Oct. 28, 2005, etc.). Meanwhile, in the above crime of obstruction of performance of official duties, the term "execution of duties" does not refer only to the case where a public official directly performs acts necessary for the performance of his duties, but also to the case where a public official is in the working state for the performance of his duties. In light of the nature of his duties, it is inappropriate to discuss the commencement and termination of each performance of official duties separately, and it is reasonable to understand that the series of acts including various kinds of acts should be understood as a series of duties (see Supreme Court Decision 2008Do919, Jan. 15, 2009).

In addition, any person who is committing a crime or immediately after the commission of a crime may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act). To arrest a flagrant offender, the necessity of arrest, i.e., the necessity of escape or destruction of evidence, in addition to the punishment of the act, the current and time contact of the crime, and the apparentness of the crime and the crime (see Supreme Court Decision 98Do3029, Jan. 26, 199, etc.) should be determined based on the situation at the time of arrest when the person satisfies the requirements for the arrest of the flagrant offender. In addition, the determination of the investigative body on the requirements is likely to have a considerable discretion. Therefore, unless the determination of the investigative body on the requirements is deemed unreasonable in light of the empirical rule, it is not concluded that the arrest of the flagrant offender is illegal (see Supreme Court Decision 2012Do8184, Nov. 29, 2012, etc.).

(2) According to the evidence duly admitted by the first instance court and the lower court, the following facts are revealed.

① around 09:00 on October 13, 2016, Nonindicted Party 1, at the underground parking lot of ○○ apartment △△△△△△, attached to the Defendant due to parking problems and contact accidents, etc., and reported Nonindicted Party 1 to 112 via telephone for the growing dispute.

② Police officers Nonindicted 2, who were assigned to △△ apartment △△△ on October 13, 2016, became one and two police officers, from October 13, 2016 to 12:00 on the same day, and were on duty aboard the patrol boat No. 19. However, the police officers, who were assigned the said 112 report, sent it to the ○ apartment △△△ Dong parking lot around 09:48 on the same day.

③ At the time Nonindicted 2 and Nonindicted 3 arrived at the above underground parking lot around 09:55 on the same day, the Defendant was in a serious dispute, such as taking a bath to Nonindicted 1 in the state of an emotional interest. Nonindicted 2, who was dispatched to the site, prevented the Defendant, and heard the statement from the Defendant on the background of the contact accident.

④ However, in the process of speaking the circumstances surrounding the accident, the Defendant made the horses to Nonindicted 2, and thereby, caused Nonindicted 2, a Si guard, or Nonindicted 2’s chest by hand while taking a bath to Nonindicted 2, a person who puts his arms to Nonindicted 2. As such, Nonindicted 2 and Nonindicted 3 determined that the Defendant interfered with the police officer’s official duties, and arrested the Defendant as an offender in the crime of obstruction of performance of official duties.

⑤ The Defendant, who was arrested as an offender in the act of committing an act of committing an offense and arrived at the police box, was requested to produce identification cards by Nonindicted 3, etc., but refused to disclose his/her personal information and notified about 20 minutes of his/her personal information.

(3) Examining the above facts in light of the legal principles as seen earlier, the following is determined.

① Nonindicted 2 called up to the above underground parking lot on October 13, 2016 during the patrol duty, and such mobilization was a part of the patrol duty scheduled until around 12:00 on the same day. Furthermore, Nonindicted 2’s attachment of Nonindicted 2 to the Defendant was an occurrence during the process of hearing the Defendant’s statement about the circumstances of accidents, and thus, it cannot be deemed that Nonindicted 2’s performance of duties was terminated solely on the basis that the Defendant was placed at a time.

② At the time of Nonindicted 2’s arrival in the above underground parking lot, Nonindicted 2 was in a bad atmosphere due to Nonindicted 1’s speech, and the Defendant took care of Nonindicted 2’s chest immediately before the locking of Nonindicted 2’s chest by hand. In light of the circumstances and attitudes at the time of such act, there is no room to deem that the degree of assault is minor.

③ In light of the fact that the report on 112 was Nonindicted 1, who was not the Defendant, and that the Defendant was arrested as a flagrant offender and did not state his personal information without complying with the request of the police officer to present his identification card even after the Defendant arrived at the police box, it cannot be said that there was no concern that the Defendant might escape or destroy evidence at the time

(4) Therefore, at the time of the Defendant’s abductioning Nonindicted 2’s chest on his hand, Nonindicted 2 was performing his duty or patrol duty concerning the handling of Nonindicted 2’s report, and Nonindicted 2’s chest, who is performing official duties, may be deemed as an act of assaulting the crime of obstruction of performance of official duties as an exercise of force against a public official. Furthermore, insofar as it cannot be said that there was no concern about escape or destruction of evidence at the time of arrest, arrest needs are recognized.

B. (1) Considering the fact that the method of evaluating the credibility of a statement made by a witness of the first instance trial has an essential difference between the first instance court and the appellate court, and the purport of the substantial direct examination principle adopted by the Korean Criminal Procedure Act, the appellate court shall not reverse without permission the first instance court’s judgment on the ground that the first instance court’s determination on the credibility of a statement made by a witness of the first instance trial is clearly erroneous in light of the content of the first instance judgment and the evidence duly examined by the first instance court, or that the first instance court’s determination on the credibility of a statement made by a witness of the first instance trial is clearly erroneous in light of the evidence examination and the evidence duly examined by the first instance court, or that the first instance court’s determination on the credibility of a statement made by a witness of the first instance trial is clearly unreasonable in full view of the evidence examination results of the first instance court’s examination and the evidence duly conducted by the time of closing argument in the appellate court (see, e.g., Supreme Court Decision 2008Do

(2) The record reveals the following circumstances.

① Both Nonindicted 2, Nonindicted 3, and Nonindicted 4, who were the children of Nonindicted 1 and Nonindicted 2, appeared as a witness in the first instance trial, and the Defendant testified that Nonindicted 2 would walk up twice the father due to his appearance. The first instance court determined that the credibility of the statement of the said witness is recognized, and convicted the Defendant.

② However, according to CCTV images, the lower court determined that the Defendant’s statement of the said witness was not reliable on the ground that it was not confirmed that the Defendant walked the part of the police officer Nonindicted 2, and that the said witness made a statement in an investigative agency that “the Defendant got out of the lower part of the police officer Nonindicted 2,” and that the said part of the said part was prosecuted for the first time, but the CCTV video did not confirm that the said part was deleted.

③ However, the above CCTV images are evidence that had been examined on the third trial date of the first instance trial. As to whether the Defendant, who was a police officer Nonindicted 2’s lower part of Nonindicted 2, did not go beyond the lower part of the said CCTV, there was a profound dispute in the process of examination of the said witness, and the prosecutor deleted the part of the initial facts charged on the fourth trial date of the first instance trial, which was prior to the rendering of the judgment of the first instance court, that “the Nonindicted 2, by hand, destroyed Nonindicted 2 on the floor.”

④ Meanwhile, the lower court did not examine evidence, in addition to the examination of evidence on CDs submitted by the defense counsel, and did not examine the evidence at the time, and only recorded only the voice of the Defendant and the police officer, etc., without recording the scene at the time.

(3) Examining these circumstances in light of the aforementioned legal principles, the court below's decision to reverse the first instance court's decision recognizing the credibility of the witness's statement in the facts charged should be recognized as clearly erroneous or considerably unfair. The circumstances pointed out by the court below in the reversal of the first instance court's decision are merely some of the various circumstances considering the credibility of the witness's statement in the first instance court, and the first instance court's decision to reverse the first instance court's decision on the credibility of the witness's statement in the first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's decision cannot be justified.

Rather, in light of the fact that the statements made by Nonindicted 2, Nonindicted 3, and Nonindicted 4 in the investigative agency and the court are consistent with all of their main parts, and the contents of the statements are consistent, according to the evidence duly admitted, Nonindicted 2’s booms immediately after the arrival of the police box, and that it conforms to the contents of the testimony made by the witness of the first instance trial, it would be reasonable for the first instance court to have recognized the credibility of the statements made by Nonindicted 2, 3, and Nonindicted 4.

C. Nevertheless, the lower court determined that the instant facts charged were not guilty solely on the grounds as indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine regarding the assault and performance of official duties, requirements for arrest of flagrant offenders, etc., or by violating the principle of court-oriented trials and the principle of direct psychological examination, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)