2013Dismissal703 Obstruction of Performance of Official Duties

A person shall be appointed.

J. J. J. (Lawsuits) and le.m. (Public trial)

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October 23, 2013

The defendant shall be innocent.

1. Summary of the facts charged

On October 24, 2012, the Defendant: (a) around 10:10, * Gu*** Dong****** in front of the earth, (b) before the earth, (c) *** police station**** from the front of the earth, (d) he was requested to accompany the earth to the earth, and (e) made a b) floth and b) with her flap, while getting on the patrol, while taking a bath against B while carrying the patrol.

As a result, the defendant interfered with the legitimate execution of duties of police officers' criminal investigations.

2. Summary of the defendant and his defense counsel

The Defendant, against his will, was forced to conduct voluntary behavior *** in the form of force, and the act of compelling the Defendant as above constitutes an unlawful arrest, and thus, the act does not constitute obstruction of performance of official duties even if the Defendant had flatd the flat of the police officer due to the display of an objection against the above illegal execution of duties.

3. Determination;

The burden of proof for the facts constituting an offense prosecuted in a criminal trial is to be borne by a public prosecutor, and the conviction is to be based on evidence with probative value, which makes the judge feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is suspicion of guilt against the defendant, it is inevitable to determine the benefit of the defendant (see, e.g., Supreme Court Decision 2002Do5662, Dec. 24, 2002).

Since the crime of obstruction of performance of official duties under Article 136 of the Criminal Code is established only when the execution of official duties is legitimate, it is necessary to establish the crime of obstruction of performance of official duties against a police officer who conducts voluntary behavior.

However, in the form where an investigator obtains consent from a party in the course of an investigation, accompanying a suspect to the investigative agency, etc. is placed in a situation similar to the arrest in reality because the freedom of body of the other party is practically restricted and actually restricted, and there is no way to restrain accompanying in force without a warrant, so institutional and practical decentralization is not guaranteed, and there is a high possibility that it may result in a violation of the principle of the Criminal Procedure Act, such as not providing various guarantee devices for rights granted to the suspect under arrest and detention under the Constitution and the Criminal Procedure Act on the ground that it has yet to be prior to the regular arrest and detention stage. Thus, it is reasonable to deem the legality only where the investigator knew that he/she could refuse accompanying the person prior to the accompanying, or where it is clearly proved by objective circumstances that the suspect was accompanied to the investigative agency, etc. by his/her voluntary will, such as where he/she is allowed to leave from the accompanying place at any time, and the accompanying suspect can have been accompanied (see, e.g., Supreme Court Decision 200Do4521, Oct. 29, 209>

In light of the following circumstances, as to whether voluntary movement by police officers was legitimate at the time of the instant case in accordance with the aforementioned legal doctrine, evidence submitted by the prosecutor alone is rejected, and it is difficult to readily conclude that the Defendant solely boarded the police officer on his own initiative and accompanied the police officer to the patrol group ** the police officer. There is no other evidence to acknowledge this.

①** The police station** * the global police station* He stated in this court that, at the time stated in the facts charged, the defendant was sent to Seoul****** the Gu****************** even though he was notified that he would go to the district, the defendant would not have been placed in the district, and the defendant was arrested as a flagrant offender and was arrested as a flagrant offender and was absent from the patrol room. Ultimately, even though there was a little error about whether the arrest procedure of a flagrant offender was actually taken place, it is difficult to view that the defendant's statement was made based on a false disposition or a compulsory disposition, such as arrest, etc. as a result of the patrol **********.

② Also, in this court, the defendant did not comply with the recommendation of the police to pay food in front of the restaurant, and first mentioned "A" as a conditionless police station *** because he did not arrest the defendant as a flagrant offender at that time, and did not give notice of the reason for arrest or the right to appoint a counsel. While clearly stated that B did not arrest the defendant as a flagrant offender at that time, the above "**************'''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''s right to appoint a defense counsel, it is difficult to readily conclude the defendant's voluntary testimony based on the defendant's own will.

③ Considering that the Defendant’s aforementioned statement alone was insufficient to recognize that the Defendant rejected the Defendant’s defense suit and consented to the Defendant’s moving the patrol to the district in the process of avoiding disturbance as above, it is difficult to readily conclude that the Defendant gave consent to voluntary movement in light of its situation, and at least, it is possible to exclude the possibility that the Defendant refused to move to the patrol vehicle to the police station, so long as it could not be excluded from the possibility that the Defendant refused to move to the patrol vehicle to the police station, and that the Defendant could not have expressed his refusal to move to the police station at that time, and there is no other evidence to acknowledge the Defendant’s voluntary act of moving to the patrol. In addition, even if the Defendant made a speech to the effect that “a son was going to the police station” in the process of avoiding disturbance as above, it is difficult to conclude that the Defendant gave consent to voluntary movement in light of its situation.

4. Conclusion

Therefore, the facts charged in this case constitute a case where there is no evidence to acknowledge that the police officer’s performance of duties is lawful, and thus, it is not guilty under the latter part of Article 325 of the Criminal Procedure Act

Judges Kim Hyun-hoon