[1] Requirements for a police officer’s restraint measure to prevent a crime under the former Act on the Performance of Duties by Police Officers to be deemed a legitimate performance of duties

[2] Where a prosecutor or a judicial police officer arrests a flagrant offender, the time to notify the summary of the suspected crime, the reason for the arrest, the right to appoint a defense counsel, etc.

[3] The meaning of "legal performance of official duties" in the crime of obstruction of performance of official duties, and whether the police officer's act of attempting to commit a flagrant offender by force without complying with due process constitutes legitimate performance of official duties (negative)

[4] In a case where there are reasonable grounds to believe that an act to defend the current infringement of another person’s legal interest constitutes legitimate self-defense (affirmative)

[1] Article 2 Subparag. 1 of the former Act on the Performance of Duties by Police Officers (amended by Act No. 11031, Aug. 4, 201) provides that “crime prevention” is one of the duties performed by police officers (Article 2 Subparag. 2 of the current Act) and Article 6(1) of the same Act provides that “If a police officer deems that a crime is about to be committed in front of the police officer, he/she shall issue a warning to the person concerned to prevent the crime, and if an emergency is required due to the act’s occurrence of harm to human life and body or grave damage to property, he/she may stop such act.” (Article 6 of the current Act provides the same contents). In order to ensure that a police officer’s restraint measures to prevent a crime can be evaluated as legitimate performance of duties, it can be objectively recognized that an act subject to criminal punishment is likely to be committed in front of the police officer, and there is no concern that a police officer would directly harm his/her life and body unless the act is avoided.

[2] In a case where a public prosecutor or a judicial police officer arrests a flagrant offender, he/she must be given an opportunity to defend himself/herself by stating the summary of the suspected crime, the reason for arrest, and the fact that he/she can appoint a defense counsel (Articles 213-2 and 200-5 of the Criminal Procedure Act). Such a notice should be given in advance before entering an exercise of the real force for arrest. However, in cases where the suspect gets away from the police station, or where he/she depicts a suspect against violence, he/she shall be given notice in the course of attachment or suppression, or where it is not infinite, he/she shall be given notice without delay after setting it once or

[3] 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 legitimate. The legitimate performance of official duties refers to not only the abstract authority of a public official, but also the case where the specific performance of duties satisfies the legal requirements and methods regarding the specific performance of duties. Thus, if a police officer attempted to commit a flagrant offender with a force without complying with due process, it cannot be deemed a legitimate performance of official

[4] To recognize a certain act as a self-defense, the act must be deemed reasonable to protect the present infringement of one’s own or another’s legal interest, and therefore, it is not recognized as self-defense against an unlawful legitimate infringement. Whether the act of defense is socially reasonable should be determined by taking into account all specific circumstances, such as the type and degree of the legal interest infringed by the act of infringement, method of infringement, the level of infringement, and the type and degree of the legal interest to be infringed by the act of defense, etc. In addition, not only the legal interest of one’s own but also the act of defending the present unfair infringement of another’s legal interest, if there are considerable grounds, it constitutes self-defense as stipulated under Article 21

[1] Article 2 subparag. 1 (see current Article 2 subparag. 2) and Article 6(1) (see current Article 6) of the former Act on the Performance of Duties by Police Officers (Amended by Act No. 11031, Aug. 4, 201) / [2] Article 12(5) of the Constitution of the Republic of Korea; Articles 200-5, 212, and 213-2 of the Criminal Procedure Act / [3] Article 12(5) of the Constitution of the Republic of Korea; Article 136 of the Criminal Act; Articles 200-5, 212, and 213-2 of the Criminal Procedure Act / [4] Article 21 of the Criminal Act

[1] Supreme Court Decision 2007Do9794 Decided November 13, 2008 (Gong2008Ha, 1713), Supreme Court Decision 2016Do13876 Decided December 15, 2016 / [2] Supreme Court Decision 2008Do11226 Decided June 24, 2010 (Gong2010Ha, 1512) / [3] Supreme Court Decision 99Do4341 Decided July 4, 200 (Gong200Ha, 1851), Supreme Court Decision 2008Do3640 Decided October 9, 208 (Gong2008Ha, 1565) / [4] Supreme Court Decision 2008Do3640 Decided 2063636, Oct. 26, 2009; Supreme Court Decision 2009Do3640636, Oct. 26, 2007

Defendant

Prosecutor

Attorneys Lee Jae-ho et al.

Suwon District Court Decision 2011No5044 decided January 25, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. Whether the crime of obstruction of performance of official duties is established

A. Article 2 Subparag. 1 of the former Act on the Performance of Duties by Police Officers (amended by Act No. 11031, Aug. 4, 201; hereinafter “former Act on the Performance of Duties by Police Officers”) provides “crime prevention” as one of the duties performed by police officers (Article 2 Subparag. 2 of the current Act provides the same provision in the current Act) and Article 6(1) of the same Act provides that “If a police officer deems that a crime is about to be committed in his/her presence, he/she may issue a warning to interested persons to prevent the crime, and if an emergency is required due to such act that may inflict harm on human life and body or cause serious damage to property, he/she may stop such act (Article 6 of the current Act provides the same provision in the current Act).” Article 2 Subparag. 1 of the same Act provides that “Where a police officer’s restraint measures to prevent a crime can be evaluated as legitimate performance of duties, it may objectively prevent an act subject to criminal punishment from being committed in front of his/her duties, or 160.

In a case where a public prosecutor or a judicial police officer arrests a flagrant offender, he/she must be given an opportunity to defend himself/herself by stating the gist of the offense, the reason for arrest, and the opportunity to appoint a defense counsel (Article 213-2 and Article 200-5 of the Criminal Procedure Act). Such notification is in principle to be made in advance before entering an exercise of real force for arrest. However, such notification must be given in the course of attaching or suppressing a suspect who gets away of the suspect or who is against violence, or immediately after putting or suppressing him/her, if not, (see, e.g., Supreme Court Decision 2008Do1226, Jun. 24, 2010).

The crime of obstruction of performance of official duties stipulated in Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. The legitimate performance of official duties is not only within the abstract authority of a public official, but also where the specific performance of official duties satisfies the legal requirements and methods with respect to the specific performance of official duties. Thus, if a police officer attempted to commit a flagrant offender with a force without complying with due process, it cannot be deemed a legitimate performance of official duties (see, e.g., Supreme Court Decisions 9Do4341, Jul. 4, 200; 2008Do3640, Oct. 9, 2008).

B. The lower court upheld the first instance judgment that acquitted the Defendant of obstruction of the performance of official duties among the facts charged in the instant case on the following grounds.

(1) On June 26, 2009, Nonindicted Party 1, etc., who was the member of the ○○ Automobile Branch of the △△ Labor Union, with the occupation of △△△ Factory, had been living in the ○○○○○○○○○ Automobile Branch, had been living out of the factory to consult with the police and the introduction of meals, or to take a dog conference conference, and the riot police officers failed to move to the 6 members, such as Nonindicted Party 1, etc., on the pretext of “high-speed management.” Although the above members attempted to stop any criminal act, or attempted to prevent the above members from moving out of the factory, or caused serious damage to their lives and bodies, or caused serious damage to their property, they cannot be deemed as measures based on Article 6(1) of the former Act on the Execution of Duties by Police Officers, which constitutes an arrest under the Criminal Procedure Act.

(2) The fact that riot police officers did not properly notify the grounds, etc. for the arrest during the process of arresting the above union members after the lapse of 30 to 40 minutes that they received from the defendant et al. and notified the grounds, etc. for the arrest only after receiving the defendant et al. does not comply with the lawful procedures for the arrest of the flagrant offender under the Criminal Procedure Act, and

(3) The crime of obstruction of performance of official duties cannot be established, even if the Defendant resisted to the above illegal performance of official duties, and even if he was frightened by hand the riot police failure, or carried the riot police failure into his body, as shown in the facts charged, the crime of obstruction of performance of official duties cannot be established.

C. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and the record, 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, or by misapprehending the legal doctrine on the establishment of a crime of obstruction of performance of official duties, measures stipulated in Article 6(

2. Whether an act of injury constitutes self-defense;

A. To recognize a certain act as a self-defense, it must be reasonable to defend the current infringement of one’s own or another’s legal interest, and thus, it is not recognized as legitimate self-defense. In such a case, whether a defense act is socially reasonable should be determined by taking into account all specific circumstances, such as the type and degree of the legal interest infringed by the act, method of infringement, complete completion of the act, and type and degree of the legal interest to be infringed by the act of defense (see, e.g., Supreme Court Decisions 2003Do3606, Nov. 13, 2003; 2006Do9307, Mar. 29, 2007). In addition, if not only one’s legal interest but also an act to defend the current unfair infringement of another’s legal interest, it constitutes self-defense under Article 21 of the Criminal Act, and thus, illegality is dismissed (see, e.g., Supreme Court Decision 2006Do1486, Sept. 8, 2006).

B. After recognizing the following facts based on the admitted evidence, the lower court upheld the first instance judgment that acquitted the Defendant of the injury among the facts charged in the instant case, on the ground that the Defendant’s act constitutes self-defense to defend unjust infringement against six persons, including Nonindicted 1, etc.

(1) As seen in the above 1.B.(2), the act of riot police officers to arrest six members, including Nonindicted 1, etc. is unlawful as it did not observe the arrest procedure under the Criminal Procedure Act.

(2) On June 22, 2009, the Defendant was requested by the chairman of the Labor Relations Commission of △△△○○○ District, which requested on June 22, 2009, that “in the event a large number of players occur due to the strike by the head of ○○ Automobile Branch, he shall take appropriate measures so that an attorney-at-law meeting may be held promptly.” On June 26, 2009, the Defendant visited the site of this case on June 26, 2009, and responded to witness the illegal arrest of the said members, and prevented the riot police officers from illegally arresting rioting the Defendant, and the riot police officers strongly sealed the Defendant.

(3) The Defendant resisted the above tangible force exercise of riot police units and spawed Nonindicted 2 and Nonindicted 3 with the riot police units, thereby causing bodily injury to Nonindicted 2 and Nonindicted 3. Although the degree of injury suffered by Nonindicted 3 is not somewhat weak, the tangible force of the Defendant’s use of Nonindicted 2 and Nonindicted 3 by the riot police units does not seem to exceed the degree of tangible force toward the Defendant.

C. Examining the reasoning of the lower judgment in light of the record, the lower court’s determination that the Defendant’s act constituted self-defense in light of various circumstances revealed in the lower judgment, including the process and motive of exercising force, the background leading up to the occurrence of an injury, and the part of the injury, etc., is justifiable. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules

3. Conclusion

The prosecutor's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)