In a case where the police officer Gap, Eul, and Byung who called to the scene due to the vision of the drinking value of the defendant Gap, Byung, and Byung confirmed the fact that the defendant Gap was nominated by a fine not to pay the fine, and the defendant Gap's refusal to arrest the defendant Gap and the defendant was prosecuted for interfering with the police officer's official duties concerning the arrest of the defendant Gap, such as assaulting the police officer's union and the military prosecutor, the case holding that the defendant was acquitted on the ground that the police officer Gap's attempt to arrest the defendant Gap without notifying that the warrant of execution was issued and attempted to arrest the defendant Gap was illegal for the reason that it constitutes an unlawful official duties.

In a case where the police officer Gap, Eul, and Byung who was dispatched to the scene due to the urgency problem verified personal information, the defendant Gap confirmed the fact that the defendant Gap was nominated and assigned as a fine not to pay the fine, and the defendant Gap's refusal to do so and the defendant Gap was prosecuted for interfering with the police officer's official duties concerning the arrest of the defendant Gap, such as assaulting the police officer's situation and the warrant of execution, the case holding that the judicial police officer notified the other party of the execution warrant issued by the prosecutor to arrest the person subject to the fine (see Article 85 (1) of the Criminal Procedure Act), and that the police officer did not issue a warrant of execution and issued a warrant of execution (see Article 85 (3) of the Criminal Procedure Act), and that the police officer's notification of the ground for and execution of the warrant of execution without presenting the warrant of execution to the other party, and that the police officer's notification of the ground for and execution of the warrant of execution without the warrant of execution to the defendant Gap's non-guilty under Article 85 (3) of the Criminal Procedure Act.

Article 136(1) of the Criminal Act; Articles 85(1) and (3), 325, 473, 475, and 492 of the Criminal Procedure Act

Defendant 1 and two others

Both parties

Freeboard Republic of Korea and one other

Attorney Kim Yong-han

Changwon District Court Decision 2016Ra1069 decided December 22, 2016

The judgment of the court below is reversed.

Defendants are not guilty.

The summary of the judgment shall be published.

1. Summary of grounds for appeal;

A. Defendants

1) Legal principles

Since the police without a warrant of execution of punishment cannot be deemed legitimate arrest to Defendant 1, the Defendants’ act of resistance to the police’s improper performance of official duties does not constitute the obstruction of performance of official duties. Nevertheless, the judgment below which recognized the establishment of the obstruction of performance of official duties as to the facts charged of this case is erroneous in the misapprehension of legal principles.

2) Unreasonable sentencing

The sentence of the court below (Defendant 1: 2 years of probation, one year of probation, 100 hours of community service, 2 years of probation, 60 hours of community service, 3: 60 hours of probation in June, 2 years of probation, 2 years of probation in June and 60 hours of probation, and 60 hours of community service in June) is too unreasonable.

(b) Prosecutors;

Each sentence against Defendant 2 and Defendant 3 of the lower court is too unhued and unreasonable.

2. Judgment on the Defendants’ assertion of misapprehension of legal principles

A. Summary of the facts charged in this case

1) Defendant 1

At around 01:10 on July 14, 2016, the Defendant was found to have been sentenced to fine (4 million won) due to the violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents in the process of receiving personal information from a police officer who was sent to the scene due to drinking alcohol at the ○○○○○○○○○○○○○ on the 6th floor of 01:10, the Defendant, at the time of drinking alcohol and received confirmation of the personal information from the police officer who was sent to the scene due to drinking alcohol and drinking value, and requested him to accompany the △△△△ district after being notified of the domina principle. Upon refusing voluntary driving, the Defendant was notified by Nonindicted 1 and Nonindicted 2, the police officer of the △△△△ District, who was dispatched, to whom he was dispatched, and carried the sub-numbered after being informed of the principle.

Accordingly, the defendant interfered with the legitimate execution of duties by police officers on the arrest of a prisoner.

2) Defendant 2

At the date and time, at the place of entry in paragraph (1), the Defendant: (a) took a bath to the Defendant, Nonindicted 3, Nonindicted 1, and Nonindicted 2, who was the offender of the △△ District, for the arrest of Defendant 1, who was the offender of the fine, pursuant to Nonindicted 2, at the location of the △△△ District; and (b) obstructed the police officer’s escorting of the fine for negligence for about ten minutes by preventing Nonindicted 1, who was the offender of the police officer’s arrest; (c) her blue blue blue blue blue blue blue blue blue flue blue blue blue blue blue bru, from spreading Nonindicted 1 at one time; and (d) preventing Nonindicted 2 from leaving the Defendant 1, who was continuously arrested.

Accordingly, the defendant interfered with the legitimate execution of duties by police officers on the arrest of a prisoner.

3) Defendant 3

The Defendant, at the date and time as indicated in paragraph (1), and at the place where the △△△ District was located, transported Defendant 1’s chest, who was the person who was sentenced to a fine, by means of Nonindicted 3, Nonindicted 1, and Nonindicted 2, was arrested and detained, who was the person charged with the charge of the charge of the △△△ District, to tightly pushed down the chest of Nonindicted 1, and Nonindicted 2, who was the person charged with the charge of the charge of the △△△△△△, and was snicked after the patrol of the police officer, who attempted to take aboard the patrol vehicle, and called “web off. Ham. Ham. Ham. Ham...” From the above police officer, the Defendant abused Nonindicted 2’s left blue blu

Accordingly, the defendant interfered with the legitimate execution of duties by police officers on the arrest of a prisoner.

B. Relevant provisions and legal principles

The crime of obstruction of the performance of official duties under Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. Even if an assault or intimidation is committed against a public official performing a lack of legitimacy, such act cannot be deemed a crime of obstruction of the performance of official duties. In such cases, “legal performance of official duties” refers to cases where the act is not only within the abstract authority of a public official, but also meets the legal requirements and methods for specific performance of official duties (see Supreme Court Decision 2007Do7514, Apr. 28, 201).

Article 72 of the Criminal Procedure Act shall apply mutatis mutandis to the execution of a sentence of imprisonment, as it is practically the same as the type of imprisonment, and the provisions on the execution of a sentence is applicable mutatis mutandis (Article 492 of the Criminal Procedure Act). A public prosecutor, who is an enforcement agency of a sentence, may summon the parties for the execution of the sentence, and if the parties fail to comply with such summons, he/she may issue a warrant of execution (Article 473 of the Criminal Procedure Act). Article 475 of the Criminal Procedure Act provides that the provisions on detention of the accused as stipulated in Chapter 9 of Part 1 of the Criminal Procedure Act concerning the execution of a warrant of execution of punishment shall apply mutatis mutandis. In this context, “the provisions on detention of the accused” refers to “the provisions on the execution of a warrant of detention of the accused.” Meanwhile, Article 72 of the Criminal Procedure Act on the grounds for detention of the accused does not apply mutatis mutandis to the execution of a warrant of execution of punishment (see Article 70(2) of the Criminal Procedure Act). In order for the execution of a warrant of execution of punishment by a person who is lawfully present (see Article 85(3).).

C. The judgment of the court below

The court below found the Defendants guilty of all the charges of this case against the Defendants, on the basis of the evidence in its holding.

D. Judgment of the court below

In light of the evidence duly adopted and examined by the court below, the court below found the following facts: (a) while Nonindicted 1 was called to the site as a vision issue of the Defendant’s drinking value and confirmed his personal information, Defendant 1 was confirmed to have been assigned to Defendant 1 as a fine for a fine not paid; (b) the police officer notified Defendant 1 of his failure to pay a fine to Defendant 1; (c) the police officer attempted to voluntarily move to the police station; and (d) Defendant 1 was refused to voluntarily move to the police station; and (d) the police officer notified Nonindicted 1 and Nonindicted 2 of his intention to arrest him after arresting the Defendant 1.

In light of the above legal principles, it may be deemed that this case constitutes “in case of urgency” that can be arrested without presenting a warrant of execution. However, even in case of urgency, a judicial police officer may inform the other party that the warrant of execution was issued (Article 85(3) of the Criminal Procedure Act), and according to each statement in the court of the court below held by Nonindicted 1 and Nonindicted 2, the witness only notified Defendant 1 of the fact that the warrant of execution was issued due to the failure to pay the fine and the principle of disturbance. The witness did not notify the facts regarding the issuance of the warrant of execution, ② even if the number of orders issued to the person who has failed to pay the fine is made after the issuance of the usual warrant of execution, there is a possibility of mistake in the process, and there is a difference between the issuance of a warrant of execution, the purpose, requirements, and law of the warrant of execution, and related contents of the on-site manual of the police, so long as there is no other evidence that the prosecutor has already been issued the warrant of execution of the warrant of execution.

3. Conclusion

Therefore, since the defendants' appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged in this case is the same as that of Article 2-1(a) and Article 2-4(d) of the Criminal Procedure Act, and as seen in the latter part of Article 325 of the Criminal Procedure Act, it constitutes a case where there is no proof of crime, and thus, it is so decided as per Disposition by the assent of all participating Justices on the bench that acquitted each of the Defendants under the latter part of

Judges Cho Sung-dae (Presiding Judge) Kim Dok-young decoration