[1] The meaning of Article 211 of the Criminal Procedure Act, which provides for a flagrant offender, "a person who is ex post facto committing an offense"

[2] The case holding that arresting a driver who was seated on the roadside at the expiration of at least 40 minutes after the driving of alcohol cannot be deemed a legitimate performance of official duties on the ground that the arrest of the driver as an offender in the act of drinking driving cannot be deemed a lawful performance

[1] Article 211 of the Criminal Procedure Act / [2] Article 211 of the Criminal Procedure Act

[1] Supreme Court Decision 91Do1314 delivered on September 24, 1991 (Gong1991, 2641) Supreme Court Decision 94Da3726 delivered on May 26, 1995 (Gong1995Ha, 2251) Supreme Court Decision 2001Do300 Delivered on May 10, 2002 (Gong2002Ha, 146)

Defendant

Prosecutor

Cheongju District Court Decision 2006No830 Decided January 25, 2007

The appeal is dismissed.

The grounds of appeal are examined.

Article 211(a) of the Criminal Procedure Act provides that "a person who is ex post facto (i.e., the commission of a crime)" refers to cases where it is evident from the standpoint of the person who arrests him/her that he/she is an offender immediately after the commission of the crime. As such, Article 211(1) provides for a flagrant offender with respect to the original meaning of the crime in Article 21(1) and separately provides for a "person who is ex post facto (i.e., the commission of the crime)" as a flagrant offender, and Article 211(2) of the same Act provides for a "after the commission of the crime is completed" in regard to a quasi flagrant offender regarded as a flagrant offender, the term "after the commission of the crime is completed" is interpreted as a "after the commission of the crime is completed or a person who is arrested in consideration of time and place, may be deemed a flagrant offender only if it is clearly recognized that the person who is ex post facto (see, e.g., Supreme Court Decision 9Do1314, Sept. 24, 1991).

In light of the above legal principles and records, the court below acknowledged the facts as stated in its judgment, and found the defendant not guilty of the facts charged of this case on the ground that the non-indicted 2, who was dispatched after receiving the report, 40 minutes or more after the expiration of drinking driving, was drinking at the time of the expiration of 40 minutes, and arrested the defendant as an offender in the act of drinking driving on the ground that the arrest of the defendant as an offender in the act of drinking alcohol constitutes "a state in which it is not clear that the defendant has committed a crime as to the fact that drinking driving was a criminal," and it cannot be viewed as a legitimate performance of official duties. The request for a drinking test for the defendant was not a procedural legality, and the investigation of the defendant also cannot be deemed a lawful act of performing his duties, and therefore, it is justified to find the defendant not guilty of the facts charged of this case, and there is no error of law such as misconception of facts, misapprehension of legal principles

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

Justices Park Si-hwan (Presiding Justice)