Where judicial police officers, etc. arrest a suspect in possession of a warrant of arrest, they shall notify the summary of the crime, reasons for detention, the right to appoint a defense counsel, etc.

Articles 72 (see current Article 200-5), 85 (1), and 200-5 (see current Article 200-6) of the Criminal Procedure Act (Amended by Act No. 8496, Jun. 1, 2007);

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant-appellant-appellant-appellant-appellant-Appellee-appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee

Defendant

Defendant

Attorney Park Byung-chul et al.

Seoul High Court Decision 2007No752, 2007No1359 decided Nov. 8, 2007

The final appeal is dismissed. 83 days out of detention days after the final appeal shall be included in the original sentence.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The court below held that even if it was found after the fact that the defendant was detained in Busan City's detention house on the date of the crime stated in the criminal facts of arrest warrant, the court below did not execute illegal official duties on the ground that the defendant's request for arrest warrant and arrest warrant against the defendant by non-indicted 1 or non-indicted 2, etc., who applied for arrest warrant against the defendant or for arrest warrant, knew that the defendant was detained in the detention house on the date of the crime stated in the arrest warrant, or there was no evidence to find that the criminal facts of arrest warrant were false, and therefore, it cannot be deemed that the defendant's request for arrest warrant and arrest against the non-indicted 1 and non-indicted 2, etc. are considerably unreasonable.

The court below did not err in the misapprehension of legal principles as to the legality of arrest warrant as alleged in the grounds of appeal.

2. In principle, a judicial police officer, etc. shall present an arrest warrant to the suspect at the time of the arrest and give him/her an opportunity to defend himself/herself by presenting the summary of the crime committed against the suspect, the reason for detention, and the opportunity to defend himself/herself. The presentation or notification of such an arrest warrant under Articles 200-5, 72, and 85(1) of the Criminal Procedure Act (amended by Act No. 8496 of Jun. 1, 2007), and the presentation or notification of such an arrest warrant must be done without delay after entering the exercise of the real force for the arrest. However, in cases where the suspect gets away from the arrest warrant, or is under pressure by de facto force, it shall be done in the process of attaching or suppressing the suspect, or if not, even if so, it is set back, or under pressure.

The court below acknowledged the facts as stated in its decision after comprehensively taking account of the adopted evidence, and held that since the arrest warrant against the defendant was issued by Nonindicted 2, etc. prior to the execution of the arrest warrant against the defendant, prior to the execution of the warrant of arrest against the defendant, the defendant was informed of the fact that the warrant of arrest against the defendant was issued due to the suspicion of scopon medication, the summary of the crime and the right to appoint counsel, etc., and again, the defendant tried to produce to the defendant by taking out the arrest warrant held by Nonindicted 3, but he tried to resisting the defendant with his arms, and again, Nonindicted 2, etc. resisting the right to the right of the defendant with his shoulder affixed, and he did not present the arrest warrant against the defendant as he left the scene because he did not arrest the defendant by force and left the scene without arresting him, the above arrest warrant by Nonindicted 2, etc. should be deemed legitimate execution of official duties. In light of the aforementioned legal principles and records, the court below's above fact-finding and judgment is justified.

On the other hand, excessive defense refers to a case where there was an act to defend the infringement under the objective premise of the current self-defense, which is the unfair infringement of one's own or another's legal interest, but such act was only conducted and there is no reasonable ground. As seen earlier, since the arrest act by Nonindicted Party 2, etc. is recognized as legitimate execution of official duties, it is difficult to view the defendant's act of inflicting an injury on Nonindicted Party 2 as an excessive defense.

As alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the legality of the arrest procedure and excessive defense, or by misapprehending the legal principles.

3. The court below acknowledged the facts in its reasoning based on the evidence of the employment, and recognized the fact that the defendant carried the right part of the non-indicted 2's right part of the defendant with a shoulder glass, and caused about about 10 days to non-indicted 2 the right part of the non-indicted 2 to the right part requiring medical treatment. In comparison with the relevant evidence's records, the court below's fact-finding and judgment are justified.

As alleged in the ground of appeal, the court below did not err by violating the rules of evidence, and therefore, it did not err by misapprehending the rules of evidence selection or fact-finding, which belongs to the exclusive jurisdiction of the court below, as a fact-finding court.

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 Shin Hyun-chul (Presiding Justice)