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Defendant
All appeals by prosecutors are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Defendant 1 did not have used the same violence as indicated in the facts charged against the police officer, and even if the violence was exercised, this does not constitute a crime of obstruction of performance of official duties since it was committed in the process of resisting the lawful performance of official duties by the police officer, and the injury inflicted in the process also constitutes self-defense and the illegality of the injury inflicted in the process is excluded. 2) The punishment of the lower court (one hundred months of imprisonment) is too unreasonable.
B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.
2. Determination
A. According to the evidence duly admitted and examined by the lower court as to the Defendant’s assertion of mistake and misapprehension of legal doctrine, the fact that the Defendant exercised the same tangible power as the facts charged can be recognized.
According to Article 212 of the Criminal Procedure Act, any person may arrest a flagrant offender without a warrant. In order to arrest a flagrant offender, there should be concerns about the necessity of arrest, i.e., escape or destruction of evidence in addition to the punishment of the act, the current nature of the crime, the consistency of the time and the apparentness of the crime.
(See Supreme Court Decision 98Do3029 delivered on January 26, 199, etc.). However, whether a person satisfies the requirements for the arrest of a flagrant offender should be determined based on the situation at the time of the arrest, and the judgment of the investigating entity regarding the requirements should have a reasonable discretion. Considering the situation at the time of the arrest as at the time of the arrest, the arrest of a flagrant offender cannot be deemed unlawful unless the judgment of the investigating entity on the requirements is considerably unreasonable in light of the empirical rule.
(See Supreme Court Decision 200Do5701 Decided June 11, 2002, and Supreme Court Decision 2002Do4227 Decided December 10, 2002, etc.). According to the evidence duly adopted and examined by the lower court, at the time when G and H arrested the Defendant as a flagrant offender, the Defendant was immediately after the implementation of the insulting offense.
In addition, the defendant is also the defendant at the hotel which was at the time of accommodation.