[1] Requirements for establishing a legitimate act

[2] The requirements for the arrest of flagrant offender

[3] The standard for determining whether an act of arresting a flagrant offender constitutes an act beyond proper limits

[4] The case holding that the defendant's act constitutes a justifiable act in a case where the victim destroyed the defendant's vehicle and fleded 14 days old spawn and spawned spawn spawn, thereby causing the victim to escape

[1] Whether a certain act constitutes a legitimate act as a ground for excluding illegality should be determined in accordance with specific cases. The legitimacy of the motive or purpose of the act, the reasonableness of the means or method of the act, the third legal interest and the right of infringement of law, fourth urgency, and fifth supplementary requirements that do not have any means or method other than the act.

[2] Since any person may arrest a flagrant offender without a warrant, the arrest of a private person is deemed to be dismissed as an act under the law. The requirement of arrest of a flagrant offender requires that the arrest in addition to the punishment of the act, the current and time contact of the crime, the necessity of arrest, i.e., escape or destruction of evidence.

[3] The arrest of a flagrant offender beyond reasonable limits cannot be an act under the law as to that part. However, whether an act exceeding reasonable limits is an act should be determined depending on whether the act satisfies the general requirements of a political party, and it should not be determined based on whether the act is passive defensive act or active attack act.

[4] The case holding that the defendant's act constitutes a justifiable act in a case where the victim destroyed the defendant's vehicle and fleded 14 days old spawn and spawned spawn with spawn for the victim to escape

[1] Article 20 of the Criminal Code / [2] Articles 211 and 212 of the Criminal Procedure Act / [3] Article 20 of the Criminal Code, Articles 211 and 212 of the Criminal Procedure Act / [4] Article 20 of the Criminal Code, Articles 211 and 212 of the Criminal Procedure Act

[1] Supreme Court Decision 92Do1520 delivered on September 25, 1992 (Gong1992, 3052), Supreme Court Decision 93Do289 delivered on April 15, 1994 (Gong1994Sang, 1555), Supreme Court Decision 95Do1964 delivered on June 27, 1997 (Gong1997Ha, 2221), Supreme Court Decision 97Do337 delivered on October 13, 1998 (Gong198Ha, 2720)

Defendant

Prosecutor

Suwon District Court Decision 98No897 delivered on August 26, 1998

The appeal is dismissed.

We examine the grounds of appeal.

1. As to the mistake of facts against the rules of evidence

원심이 그 사실인정을 유지한 제1심판결 이유에 의하면, 원심은, 이 사건 공소사실 중 폭력행위등처벌에관한법률위반의 점, 즉, 피고인이 1997. 4. 2. 22:40경 평택시 팽성읍 송화리 35의 3 소재 피해자 잭 엘 조하니스(Jack L. Johannes)의 집 앞 노상에서 피해자가 그 곳에 주차하여 둔 피고인의 차를 열쇠 꾸러미로 긁어 손괴하는 것을 보고 이에 격분하여 피해자의 멱살을 수회 잡아 흔들어 피해자에게 약 14일간의 치료를 요하는 흉부찰과상을 가하였다는 점에 대하여, 검사가 제출한 증거들에 의하더라도 피고인이 피고인의 차를 손괴하고 도망하려는 피해자를 도망하지 못하게 멱살을 잡은 결과 피해자의 목부분이 빨갛게 되었다는 사실은 인정되나, 나아가 피고인이 상해의 고의로 피해자의 멱살을 잡아 흔들었다는 사실을 인정할 아무런 증거가 없다고 판시하였는바, 기록에 비추어 살펴보면, 원심의 위와 같은 사실인정은 수긍이 가고, 거기에 채증법칙을 위배하여 사실을 오인한 위법이 있다고 할 수 없다. 논지는 이유 없다.

2. As to the misapprehension of legal principle

A. Whether a certain act constitutes a justifiable act as a reason for the elimination of illegality should be determined reasonably in accordance with specific cases. The legitimacy of the motive or purpose of the act, the legitimacy of the means or method of the act, the reasonableness of the third legal interests protected and protected and infringed legal interests, the formation of rights of infringement legal interests, the fourth urgency, and the fifth supplementary requirement that there is no means or method other than the act (see Supreme Court Decisions 92Do1520 delivered on September 25, 1992, Supreme Court Decisions 93Do2899 delivered on April 15, 1994, Supreme Court Decision 97Do337 delivered on October 13, 1998, etc.). And since a flagrant offender may be arrested without a warrant, the arrest of a flagrant offender should be justified as an act under the law, and the necessity of arrest and punishment of a flagrant offender, namely, the necessity of arrest and punishment of a flagrant offender, in addition to the arrest of a flagrant offender.

However, in this case, it is clear that the victim constitutes a flagrant offender in the crime of destroying and damaging property, and the victim is flicking the defendant's vehicle as a key at the time, and the defendant attempted to flee when he denies the defendant. Therefore, the court below's decision to the same effect is justified.

B. On the other hand, arrest beyond reasonable limits can not be an act under the law as to that part. However, the issue of whether an act goes beyond proper limits should be decided depending on whether the act satisfies the general requirements of the political party as seen earlier, and it should not be decided according to whether the act constitutes a passive act of defense or an active act of attack. It is the theory of the lawsuit that the Supreme Court has ruled that the case of a party member's member's decision citing the theory is not illegal in the case of an act of passive defensive act. However, even if the act itself seems to be somewhat aggressive act, if it is an act that can be permitted by social norms, it is not illegal in the case of an act that is allowed by social norms. Thus, the theory that a party member's decision recognizes a legitimate act only as a passive act of defense is erroneous in the precedents

However, in this case, it cannot be deemed that the Defendant’s act of drinking breath in arresting the victim was an act that deviates from such appropriate limits, and even if it is acknowledged that the Defendant’s act of drinking breath in arresting the victim intending to flee, as claimed in the novel theory, it is difficult to view it as an act that cannot be permitted by social norms, even if it is acknowledged that the victim was injured by blathing the blath and shakeing the b

Therefore, there is no reason to argue that the court below erred by misapprehending the legal principles on the arrest of flagrant offenders and the legitimate act.

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

Justices Lee Jae-soo (Presiding Justice)