Defendant

Defendant

Gangwon-do (Public prosecution) and Cheong-kin (public trial)

Attorney Kang Ha-ok (Korean National Assembly Line)

Gwangju District Court Decision 2011 Godan979 Decided November 10, 2011

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for four months.

1. Summary of grounds for appeal;

A. Fact-finding or misapprehension of legal principles

The Defendant arrested the Defendant who was arrested by the police officer on the ground that the police officer did not comply with due process, such as presenting a writ of execution of punishment, or notifying the Defendant of the summary of the crime and the grounds for arrest, etc., and forced the Defendant to board the police officer to commit an injury. Therefore, the police officer’s arrest cannot be deemed legitimate official duties, and the Defendant’s act of causing an injury to the police officer in the course of resisting illegal arrest constitutes self-defense. However, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. The point of unfair sentencing

When considering various circumstances against the defendant, the punishment of the court below (nine months of imprisonment) is too unreasonable.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

(1) Article 475 of the Criminal Procedure Act applies mutatis mutandis to the custody of a person under confinement as a result of a fine. As such, the provisions on the execution of a person under confinement are applicable mutatis mutandis to the execution of a sentence (Article 492 of the Criminal Procedure Act). Therefore, a public prosecutor, who is the enforcement agency of a sentence, may summon the party under confinement for the execution of the sentence, but if the party does not comply with the summons, he/she may issue a warrant of execution and arrest the person under confinement (Article 473 of the same Act). In this case, the provisions on the detention of the defendant under Chapter 9 (Article 68 of the Criminal Procedure Act) of Part 1 of the Criminal Procedure Act shall apply mutatis mutandis to the execution of a warrant of execution of a punishment (Article 475 of the same Act). Ultimately, in order for a judicial police officer to arrest the person under confinement for the execution of a warrant of execution of a punishment, a warrant of execution issued by the public prosecutor shall be presented to the party under custody (Article 85(1) of the same Act).

According to the judgment below and evidence duly adopted and examined by the court below, on June 7, 2010, the defendant was issued a summary order of KRW 1 million for the crime of violation of the Road Traffic Act (No. 2010 high-level 6074) at the Seocheon Branch of Gwangju District Court. The above summary order was finalized on August 27, 2010 (No. 2010 high-level 823), and the defendant did not pay the above fine, and the defendant was assigned a warrant of execution on November 15, 2010, and the defendant was issued a warrant of execution on the 20th of the same month to arrest the police officer, and the defendant was issued a fine on the 2nd of the same month, and the defendant was issued a warrant of execution on the 2nd of the same month to inquire about the defendant's family and police officer's identity at the same time as the above 2nd of the same time as the police officer's second of the same month.

Examining the above facts in light of the legal principles and relevant laws and regulations as seen earlier, Nonindicted 1 and Nonindicted 2 were aware of the fact of paying a fine by the Defendant to the police station in the process of questioning the Defendant’s vehicle in order to arrest other designated recipients who are not the Defendant. Accordingly, Nonindicted 1 and Nonindicted 2 attempted to dispatch the Defendant to the police station to execute custody warrant for the Defendant. Ultimately, Nonindicted 1 and Nonindicted 2 did not have sufficient time to carry the writ of execution warrant lawfully issued, and they did not constitute a case where urgent measures are required to arrest the other party without presenting the warrant of execution stipulated in Articles 475 and 85(3) of the Criminal Procedure Act. Thus, since Nonindicted 1 et al. tried to arrest the Defendant without presenting the Defendant’s execution warrant, it cannot be deemed that there was any error of law in executing a crime of interference with the police officer’s lawful execution of a warrant of execution of official duties, it cannot be deemed that the Defendant did not have been subject to a fine for obstruction of the police officer’s execution of official duties on the ground that the Defendant did not have been subject to a lawful execution of a fine.

Therefore, the Defendant’s act of assaulting Nonindicted 2 by setting up against the police officer’s legitimate performance of official duties constitutes obstruction of the performance of official duties. The Defendant’s assertion is without merit, since the Defendant’s act of assaulting Nonindicted 2 cannot be deemed as self-defense because the Defendant’s act of assaulting Nonindicted 2, who continued to resisting the police station for the reason that the police officer intended to arrest in a workhouse due to the failure to go to the police station

B. Determination on the assertion of unfair sentencing

The crime of this case is committed by assaulting and injuring a police officer who had been under legitimate execution of his duties, and the nature of the crime is not good, and the defendant has been punished several times for traffic and violence crimes. However, the crime of this case committed each of the crimes of this case during the period of repeated crime due to this type of crime is disadvantageous to the defendant.

However, in full view of the fact that the defendant generally recognized the defendant's mistake and reflects his mistake, the fact that the defendant deposited one million won for the non-indicted 2 in the first instance trial, and that the defendant agreed to do so, and that there are some circumstances to consider the circumstances leading to the crime of this case, and other factors such as the defendant's age, character and behavior, environment, circumstances after the crime, etc., the court below's punishment is somewhat unreasonable.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged and the evidence recognized by this court is the same as that of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 152 subparagraph 1 of the Road Traffic Act, Article 43 (U.S. Driving without License), Article 136 (1) of the Criminal Act (U.S. Obstruction of Performance of Official Duties), Article 257 (1) of the Criminal Act (Bodily Injury)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Concurrent Crimes of Obstruction of Performance of Official Duties and Bodily Harm Crimes)

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Limits to Aggregate of Long-term Punishments in Offenses)

Judges Yellow Hun-Ba (Presiding Judge)