[1] Cases where an emergency arrest does not meet the requirements and constitutes an illegal arrest

[2] The case holding that it is difficult to view that the emergency arrest against the defendant constitutes an illegal arrest in light of the circumstance of emergency arrest of the defendant

[1] Article 124 of the Criminal Act; Articles 70(1)2 and 3, and 200-3(1) of the Criminal Procedure Act / [2] Articles 70(1)2 and 3, and 200-3(1) of the Criminal Procedure Act

[1] Supreme Court Order 2002Mo81 dated March 27, 2003 (Gong2003Sang, 1117)

Defendant

Defendant

Changwon District Court Decision 2005No258 Decided September 14, 2005

The appeal is dismissed. The number of days under detention after an appeal is filed, which remains after subtracting the number of days under detention before the judgment of the court of first instance, which is included in the term of original sentence, and the number of days under detention before the judgment of the court below,

1. In light of the records, the court below found the defendant guilty on the ground that the defendant could have acquired the electronic safety apparatus equivalent to the amount of the judgment by deceiving the victim by taking into account the admitted evidence after compiling the adopted evidence and recognizing the facts as stated in its reasoning. In light of the records, the court below's selection of evidence and fact-finding can be justified and acceptable, and there is no error of law such as incomplete trial or misconception of facts due to violation of the rules of evidence, as argued in the Grounds for Appeal.

2. Whether an emergency arrest satisfies the requirements should be determined based on the situation at the time of arrest, and there is a reasonable discretion in the judgment of the investigative body, such as a prosecutor or a senior judicial police officer, etc. concerning the above requirements. However, such emergency arrest can only be assessed as illegal arrest only when a prosecutor or a judicial police officer’s judgment on whether the requirements are met is considerably unreasonable in light of the empirical rule in light of the circumstance at the time of emergency arrest (see Supreme Court Order 2002Mo81, Mar. 27, 2003).

According to the records, the police officer, who was in charge of the case of accusation against the defendant, had found the defendant's residence and the factory operated by the defendant in order to identify the defendant's location, but tried to identify the defendant's location by means of tracking the mobile phone location according to the search and seizure warrant issued by the court of the prosecution where the defendant was found to have returned to the defendant's residence around October 14, 2004, and the defendant was found to have discovered the defendant's location at around 23:0 on the ground that the intention of the defendant's continuing location is diverse and there is concern about destruction of evidence and escape. In light of the above legal principles and the circumstances of emergency arrest of this case, it is difficult to view that the emergency arrest against the defendant constitutes illegal arrest. Thus, the ground of appeal pointing this out cannot be accepted.

3. In this case where a sentence of imprisonment with prison labor for less than 10 years is rendered against the defendant, the reason that the amount of punishment in the original instance is excessive cannot be a legitimate ground for appeal.

4. Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)