The judgment below

The guilty part is reversed, and that part of the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Any person may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act). In order to arrest a flagrant offender as a flagrant offender (Article 212 of the Criminal Procedure Act), the necessity of arrest, i.e., the necessity of escape or the destruction of evidence, in addition to the punishment for the act of committing the crime, the current secrecy of the crime, and the apparentness of the crime. The arrest of a flagrant offender who fails to meet such requirements constitutes an illegal arrest without a warrant, which is not based on legal basis (see Supreme Court Decision 98Do3029, Jan. 26, 199). Here, whether the requirements for the arrest of a flagrant offender meet the requirements should be determined reasonably based on the specific circumstances at the time of the arrest, and it should not be determined depending on whether

Therefore, there was a sufficient reason to recognize the current criminal when determining objectively and reasonably based on the specific circumstances at the time of arrest of the flagrant offender.

In a case where it is difficult to see that an arrest is illegal (see Supreme Court Decisions 2011Do3682, May 26, 2011; 201Do4763, Aug. 23, 2013). Meanwhile, the crime of obstructing the performance of official duties by a public official under Article 136 of the Criminal Act is established only when the performance of official duties is legitimate, and the lawful performance of official duties here refers to a case where the act is not only within the abstract authority of the public official, but also meets the legal requirements and methods for specific performance of official duties.

Although police officers failed to meet the requirements for arrest of flagrant offenders, if they want to arrest a current criminal with real force, they cannot be deemed legitimate performance of official duties, and if the act of arresting flagrant offenders goes out of legitimate performance of official duties and illegally arrests them, it is a legitimate defense that the act of assaulting a police officer in the process of resisting the arrest of a flagrant offender is to escape from the current unfair infringement of the body caused by illegal arrest.