[1] In a case where a warrant of execution of punishment is executed under the direction of a public prosecutor for the execution of custody of a person who has failed to pay a fine for negligence, whether arrest of the person who has failed to pay the fine falls within the scope of a judicial police officer

[2] In a case where the Defendant, a police officer, was indicted on the ancillary charge of neglecting his duties because he did not take necessary measures, such as arresting the Defendant, despite having been designated as a person with fine or minor negligence over three occasions, the case holding that the lower court erred by misapprehending the legal doctrine, which acquitted the Defendant of the facts charged, on the ground that the lower court acquitted him of the charges

[1] According to Articles 460(1) and 473 of the Criminal Procedure Act, the execution of a trial shall be directed by a prosecutor. A prosecutor may issue a writ of execution for the purpose of executing a punishment of imprisonment who detains the body, and arrest a convicted prisoner. According to Articles 475 and 81 of the same Act, a warrant of execution that has the same effect as a warrant of execution is executed by a judicial police officer under the direction of a public prosecutor. The provisions concerning the execution of such punishment are applied mutatis mutandis to the execution of detention in a workhouse under Article 492 of the same Act. Comprehensively taking into account these provisions, a judicial police officer has the authority to execute a warrant of execution for the execution of detention in a workhouse under the direction of a public prosecutor. In this case, arrest of a person who has failed to pay a fine belongs to the scope of duties of a judicial police officer.

[2] In a case where the Defendant, a police officer, was indicted on the ancillary charge of neglecting his duties without good cause by failing to take necessary measures, such as arresting Party A who was nominated as a fine payer and arresting Party B on three occasions, the case holding that the judgment below acquitted Party A of the charges without examining whether the execution of the judgment falls under the scope of a judicial police officer’s duty, on the ground that there is no legal ground to view that the execution of the judgment falls under the scope of a judicial police officer’s duty, and thus, the court below erred in the misapprehension of legal principles as to the facts charged without examining whether Party A was actually issued a warrant of execution, on the ground that there is no legal ground to deem that it falls under the scope of a judicial police officer’s duty.

[1] Articles 81, 460(1), 473, 475, and 492 of the Criminal Procedure Act / [2] Article 122 of the Criminal Act, Articles 81, 475, and 492 of the Criminal Procedure Act

Defendant

Prosecutor

Attorney Park Su-soo

Busan High Court Decision 2009No405 decided Nov. 12, 2009

The part of the judgment of the court below concerning the acceptance of bribery and the abandonment of duties from Nonindicted 1 is reversed, and that part of the case is remanded to Busan High Court. The remaining appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal on the acceptance of bribe, acceptance of bribery after illegal disposal, and escape of criminal

According to the reasoning of the judgment of the court below, the court below reversed the judgment of the court of first instance which found the defendant guilty on the charge of the acceptance of bribe from Nonindicted 2 and the illegal acceptance of bribe from Nonindicted 3 among the facts charged in this case, and sentenced the defendant not guilty, and affirmed the judgment of the court of first instance which acquitted the defendant as to the charge of the illegal acceptance of bribe from Nonindicted 1 and the criminal escape against Nonindicted 4 after the illegal acceptance of bribe from Nonindicted 1. In light of the relevant legal principles and records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of law of logic and experience and the principle

2. As to the ground of appeal on the waiver of duty

According to the reasoning of the judgment below, as seen earlier, the court below acquitted the police officer of the primary charge of the bribery after the illegal disposal of Nonindicted Party 1, which is the primary charge, on the ground that the police officer did not take necessary measures, such as arresting Nonindicted Party 1, whom the Defendant was nominated as the person who was not paid a fine, on three occasions, and failing to arrest him/her on three occasions and hand over his/her new illness to the prosecutor's office, and abandons his/her duties without good cause. The court below acquitted the police officer of this part on the ground that the police officer was under the direction of the prosecutor in relation to the criminal investigation, and there is no legal ground to recognize

However, we cannot agree with the judgment of the court below on the waiver of duty for the following reasons.

According to Articles 460(1) and 473 of the Criminal Procedure Act, the execution of judgment shall be directed by a public prosecutor. A public prosecutor may issue a writ of execution to arrest a prisoner for the purpose of executing a punishment of imprisonment who confiness the person in custody. According to Articles 475 and 81 of the same Act, a warrant of execution that has the same effect as a warrant of execution shall be executed by a judicial police officer under the direction of a public prosecutor. Provisions on the execution of a sentence shall apply mutatis mutandis to the execution of detention in a workhouse under Article 492 of the same Act. Considering these provisions, a judicial police officer also has the authority to execute a warrant of execution, etc. for the execution of detention in a workhouse under the direction of a public prosecutor. In this case, arrest of a person who has failed to pay a fine falls within the scope of duties of a judicial police officer.

Nevertheless, the court below found the non-indicted 1, who was the person who paid a fine, to be innocent without examining whether the warrant of execution was issued, on the grounds that the execution of the judgment was within the scope of the judicial police officer's duty. Thus, the court below erred in the misapprehension of legal principles as to the scope of duty of judicial police officer, which affected the conclusion of the judgment.

3. Scope of reversal

As seen above, the part of the judgment of the court below on the abandonment of duties, which is the ancillary charge, cannot be maintained as is, and the part of the judgment below on the charge of bribery after the death of the non-indicted 1, which is the primary charge in relation to the same body, shall also be reversed.

4. Conclusion

Therefore, among the judgment of the court below, the part on the charge of the illegal ex post facto bribery and the abandonment of duties, which are the primary facts charged, is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Ahn Dai-hee (Presiding Justice)