2013Gohap71 Violation of the Road Traffic Act (Refusal of measurement), obstruction of performance of official duties

A

Non-prosecutions (prosecutions) and grandchildren (public trial)

Attorney B (Korean National Assembly)

September 13, 2013

The accused shall notify publicly the summary of the judgment of innocence.

1. Summary of the facts charged

The defendant is a person who is engaged in driving a C-si vehicle.

(a) Performance of official duties;

On December 1, 2012, at around 07:10 on December 1, 2012, the Defendant took a bath on the ground that: (a) the Defendant was under the influence of alcohol in front of a half-time elementary school located in the Mangu, Busan, Busan, and was requested by E in the circumstances where the victim was sent after having received a report that the victim escaped; and (b) the victim was asked to make a statement about the circumstances of the accident; (c) the Defendant was able to walk the victim’s face; and (d) the victim was on the ebbbbs of the

Accordingly, the defendant interfered with legitimate execution of duties in the suppression and investigation of the victim's crime.

(b) Violation of the Road Traffic Act;

A. On the grounds that there are reasonable grounds to recognize that the Defendant was driven under the influence of alcohol, such as the Defendant’s face while drinking at a police station located in Busan Shipping Daegu FJ, the Defendant was demanded to comply with the alcohol test on three occasions at around 07:39 of the same day, around 07:39 of the same day, around 07:50 of the same day, around 07:02 of the same day, around 08:02 of the same day.

Nevertheless, the defendant, without any justifiable reason, failed to comply with a police officer's request for sobage measurement.

2. Determination

(a) Facts of recognition;

First of all, there is no evidence to acknowledge that the defendant was assaulting E on the ground that he/she was asked by the police officer to make a statement about the accident as stated in the facts charged. Rather, he/she did not have any evidence to acknowledge that the defendant was assaulted by E: On the 7th anniversary of his/her testimony by the witness E, investigation report (an investigation of CCTV for the damaged vehicle), investigation report (an investigation of CCTV), vehicle and field photo of the Hbbbbbbbs, cutting photographs of CCTV for crime prevention, cutting down CCTV for crime prevention, video CDs, etc. On December 1, 2012, the defendant was unable to use his/her personal cab to drive his/her cab and shock his/her vehicle at the right side of G, and the defendant was unable to use his/her own cab at the time of his/her voluntary escape, and the defendant was unable to use his/her body at the time of his/her escape, and the defendant was able to use his/her her body at the front and rear 12th of the E police box.

B. Determination on the obstruction of performance of official duties

1) The crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. The term "legal performance of official duties" refers to not only the abstract authority of a public official, but also the legal requirements and methods concerning specific performance of duties. Thus, even if a person commits assault or intimidation against a public official performing an act of lack of legitimacy, it shall not be deemed a crime of obstruction of performance of official duties (see Supreme Court Decision 2004Do4731, Oct. 28, 2005). The measurement of alcohol conducted solely on the ground that there are reasonable grounds for recognizing a person driving a driving under the influence of alcohol, has meaning as an investigation procedure to collect evidence of the act of the crime of the driving under the influence of alcohol. Since the provisions of the Road Traffic Act can not serve as the basis for the compulsory disposition for the measurement of alcohol, it is in accordance with the procedure under the Criminal Procedure Act concerning compulsory disposition in order to make the driver under the influence of alcohol, and it constitutes an unlawful arrest (see, e.g., Supreme Court Decision 2006Do484.

2) It is deemed that police officers E, etc. forced the Defendant to board the patrol vehicle and forced the Defendant to take a lock against the said Defendant, constitutes lawful execution of duty.

First of all, although the defendant had already expressed his strong rejection intention about voluntary movement to E, etc., it is clear that E, etc. intended to force the defendant to the patrol vehicle constitutes an unlawful arrest that disregards the procedure under the Criminal Procedure Act regarding the compulsory disposition under investigation.

Next, according to the provisions of Article 10-2 of the Act on the Performance of Duties by Police Officers, if a police officer is a flagrant offender, he can use the police gear to the necessary extent when there are reasonable grounds that are deemed necessary for arresting and preventing a criminal from being arrested or Dod, the protection of his or another person's life and body, and the suppression of resistance to the performance of official duties.

However, in the case of this case, E, etc. is not a lawful arrest of the defendant as an offender in the crime of violation of the Road Traffic Act or the use of the lock in the process of preventing the defendant from escape, but it is merely a use of the lock for the purpose of suppressing the defendant when the defendant resisted in the process of forcing the defendant who expressed explicitly his intention of refusal to voluntarily act, and it cannot be deemed that the defendant who only engaged in the act to leave the scene did not cause harm to his or other person's life and body or there was a danger of resisting the performance of official duties. Accordingly, the act of E, etc. taking the police gear cannot be deemed a legitimate execution of duties.

3) Therefore, even if the Defendant resisted during the illegal arrest process of E, etc., and assaulted E as stated in the facts charged, the crime of obstruction of performance of official duties, which is premised on legitimate performance of official duties, cannot be established.

B. Judgment on the violation of the Road Traffic Act (the crime of refusing to measure the noise level

1) In a case where a request for a measurement of alcohol level was made under an illegal arrest, the illegal arrest for a measurement of alcohol level and the request for a measurement of alcohol level is made consecutively for the purpose of collecting evidence against the criminal act of a driving under the influence of alcohol, and it is not appropriate to individually evaluate the legitimacy of the request. Thus, even if there are reasonable grounds to recognize that a driver was a driving under the influence of alcohol level, it is unfair to force a driver to comply with the request for measurement of alcohol level by considering that he/she had a duty to comply with such request, and thus, it cannot be punished as a violation of the Road Traffic Act concerning the refusal of measurement of alcohol level (see, e.g., Supreme Court Decisions 2004Do8404, Nov. 9, 2006; 2012Do1162, Dec. 13, 2012).

2) Even if a police officer, who tried to force a person explicitly refusing a voluntary arrest request, formally takes the procedure of arresting a person who committed a crime of obstruction of the performance of official duties on the ground that the resistance of the person under arrest occurred in the course of completing the illegal arrest act was a new one, such arrest act should be viewed as having the entirety of the arrest act, and cannot be deemed as having the awareness of legitimate arrest of a police officer who committed an illegal arrest act, and therefore, the illegality of the initial arrest act should be maintained.

According to the above facts, the defendant formally was arrested as a flagrant offender of the crime of obstruction of performance of official duties and requested for a measurement of drinking by a police officer while carrying out a police box, but in substance, the police officer who committed an illegal illegal arrest act was only engaged in a different method of arrest in the process of completing the arrest act by himself/herself, and thus, the illegality of the initial arrest act should be maintained.

Therefore, the defendant cannot be punished as a violation of the Road Traffic Act concerning refusal to take a drinking level because he/she refused to comply with the demand for a drinking level under the condition that the illegality of arrest is maintained.

3. Conclusion

Thus, since each of the facts charged in this case constitutes a case where there is no proof of crime, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced pursuant to Article 58

The presiding judge, the senior judge;

Judges Lee Jae-in

Judges 00 00

1) According to the name of the crime of this case, applicable provisions of this Act, etc., the prosecutor shall distinguish the defendant from the defendant.

It appears that the road was not prosecuted. Even if the charge of injury was added to the changes in the indictment in this case, Paragraph 2, even if the indictment was changed

However, in light of the fact that the defendant inflicted an injury on the police officer in the course of resisting to escape an illegal arrest.

Acting as an act to escape from the current unjust infringement on a person's body, which constitutes self-defense or social norms

Since it should be deemed that illegality is excluded as an act of a political party that is not proven, the crime of injury is established separately.

It should not be said that it does not exist.

2) The prosecutor may reasonably recognize that the defendant was a drunk driver at the time police officers E, etc. arrested the defendant.

The defendant was a flagrant offender for the measurement of drinking alcohol in a situation where the defendant refuses voluntary movement.

The reason for arrest is that E is legitimate, however, because E is called from the police to the "field", and there is a large amount of odor for the defendant.

The defendant shall be accompanied by a police box to take a drinking test and to find out accurately about the escape area after the accident.

Although the defendant tried to do so, he was fighting in his body by refusing to take a bath and to put him on a patrol vehicle, and was in the process of doing so.

피하게 피고인에게 수갑을 채우려는 순간 피고인이 발로 자신의 얼굴을 1회 찼고, 피고인으로부터

A statement to the effect that, after being abused, the defendant was indicted as a crime of obstruction of performance of official duties, the defendant was indicted and notified of the Mono principles.

In addition, even if the statement of E is based on the statement of E, E, etc. must first demand the defendant to voluntarily act and reject the request.

To arrest a person in the act of committing a crime of violation of the Road Traffic Act as part of lawful investigation procedures following such arrest.

In addition, the illegal arrest of the defendant has already been conducted, and the resistance is newly made in the situation that the illegal arrest against the defendant was conducted.

The fact that the defendant is arrested is merely an act of arresting the defendant in the act of committing the crime.