[1] The time of commencement of the crime of arrest

[2] The timing of the commission of the crime of arrest and the case where the attempted crime of arrest is established

[3] The meaning of "injury" in the crime of causing bodily injury resulting from arrest / Where the injured party's wife does not constitute an injury resulting from arrest

[1] The crime of arrest is a crime of depriving a person of his/her physical freedom by imposing direct and realistic restraint on a person's body. The time of commencement of the execution is the time when the arrest starts the act of infringing a person's physical freedom.

[2] The crime of arrest, as a continuous crime, has been committed in time to the extent that it can be recognized that the act of arrest is clearly binding upon a person's physical freedom, and if the detention of a person's physical freedom does not reach the same extent and is temporarily deemed temporary, an attempted crime of arrest is established only.

[3] The crime of bodily injury resulting from arrest refers to an injury resulting from a change in the victim’s body and health condition, and a disturbance in the function of life. If the victim’s bodily condition is extremely minor and the victim’s bodily condition does not require treatment, and even without receiving treatment, it does not interfere with daily life, and if it can be naturally cured following the passage of time, it cannot be deemed that the victim’s physical health condition was changed, or that there was a disturbance in the function of life, and thus, it does not constitute an injury resulting from arrest.

[1] Article 276 (1) of the Criminal Act / [2] Articles 276 (1) and 280 of the Criminal Act / [3] Articles 276 (1), 280, and 281 (1) of the Criminal Act

[1] [2] Supreme Court Decision 2017Do21249 Decided February 28, 2018 (Gong2018Sang, 665) / [3] Supreme Court Decision 2003Do2313 Decided July 11, 2003 (Gong2003Ha, 1749) Supreme Court Decision 2009Do1934 Decided July 23, 2009 (Gong2009Ha, 1496)

Defendant 1 and three others

Defendants and Prosecutor

Law Firm LLC et al.

Seoul High Court Decision 2015No2449 decided October 27, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on the Defendants’ grounds of appeal

A. Regarding ground of appeal No. 1

Arrest is a crime of depriving a person of his/her physical freedom by imposing direct and realistic restraint on a person's body, and the commencement time of the commission is the time of the commission of arrest intentionally infringing another person's physical freedom (see Supreme Court Decision 2017Do21249, Feb. 28, 2018).

Based on the circumstances indicated in its reasoning, the court below affirmed the judgment of the court of first instance which found the Defendants guilty of attempted arrest, and rejected the Defendants’ allegation in the grounds of appeal on this point, on the grounds that: (a) the Defendants led Nonindicted 1 by means of cutting off Nonindicted 1’s arms or cutting off, etc., leading Nonindicted 1, thereby infringing on his physical freedom to engage in arrest; and (b) the Defendants attempted to arrest Nonindicted 1; and (c) the Defendants

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the objective and subjective constituent elements of the crime of arrest, contrary to what is alleged in the grounds of appeal

B. Regarding ground of appeal No. 2

Based on the circumstances indicated in its holding, the lower court rejected the Defendants’ allegation in the grounds of appeal disputing this determination, on the grounds that Nonindicted 1 consented explicitly or implicitly to the arrest of the Defendants, or that it cannot be deemed that the Defendants conspired with Nonindicted 1’s consent.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the victim’s understanding, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

C. Regarding ground of appeal No. 3

For the reasons indicated in its holding, the lower court determined that: (a) the Defendants’ act of Nonindicted 1’s attempt to arrest Nonindicted 1 does not constitute a justifiable act; (b) it does not constitute a justifiable act that does not constitute a legitimate act that does not violate the social norms since it cannot be deemed that (c) the Defendants’ act did not constitute a legitimate act that does not violate the social norms, and (c) it cannot be deemed that the Defendants’ act was socially reasonable as a defense act, and thus, it cannot be deemed as a legitimate act.

Examining the reasoning of the lower judgment in light of the evidence duly admitted and the relevant legal principles as indicated in the lower judgment, the lower court did not err in its judgment by misapprehending the legal doctrine regarding legitimate act and self-defense, which is the grounds for the dismissal of illegality, or by inconsistent reasoning of the judgment.

D. Regarding ground of appeal No. 4

The lower court, based on the circumstances indicated in its reasoning, determined that the Defendants’ act did not constitute a mistake in law under Article 16 of the Criminal Act, on the grounds that, even if the Defendants perceived that their own act was not a crime, there is no justifiable reason to believe that there was such mistake.

Examining the reasoning of the lower judgment in light of the evidence duly admitted and the relevant legal principles as indicated in the lower judgment, the lower court did not err in its judgment by misapprehending the legal doctrine as to legal mistake as stipulated in Article 16 of the Criminal Act, contrary to what

2. Judgment on the grounds of appeal by the prosecutor

A. As to the Defendants’ obstruction of performance of official duties on July 25, 2013

1) As to the assertion that it is legitimate as a maintenance line under the Assembly and Demonstration Act

A) Article 2 subparag. 5 of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) provides that “The chief of the competent police station or the commissioner of the competent district police agency shall set up a boundary mark, such as a belt, fence, line, etc. set up by dividing the place of the assembly or demonstration or the section of the fright at a certain time for the purpose of protecting lawful assembly and demonstration, maintaining order, or ensuring smooth traffic flow.” In addition, Article 13(1) of the Assembly and Demonstration Act provides that “the chief of the competent police agency may set the minimum scope and set the order maintenance line, if deemed necessary for protecting the assembly and demonstration and maintaining public order.” Article 13(1) of the Enforcement Decree of the Assembly and Demonstration Act (hereinafter “Enforcement Decree of the Assembly and Demonstration Act”), upon delegation of the above provision, lists a person who may set the order maintenance line under each subparagraph. Meanwhile, Article 24 subparag. 3 of the Assembly and Demonstration Act provides that a person shall be punished by spreading, moving, destroying, destroying, or destroying it for a considerable time without justifiable reason.

In light of the relevant provisions of the Assembly and Demonstration Act and the Enforcement Decree of the Assembly and Demonstration Act, if it is deemed necessary for the protection of assembly and demonstration and for the maintenance of public order, and if it falls under the grounds provided by Article 13(1) of the Enforcement Decree of the Assembly and Demonstration Act, it is reasonable to view that a line for maintenance of order under the Assembly and Demonstration Act may be established not only in the outer boundary area of the place where the assembly or demonstration is held, but also in the place of assembly or demonstration. However, even in such a case, the line for maintenance of order shall be set at the minimum scope deemed necessary for the protection of assembly and demonstration and for the maintenance of public order. If a line for maintenance of order was set out beyond the above scope, it shall not be deemed lawful

In addition, in light of the language and purport of the penal provision regarding the act of the order keeping line and the invasion of the order keeping line under the Assembly and Demonstration Act, it is reasonable to view the order keeping line as an object that can function as a boundary mark, such as belt, fence, line, etc., or a safety mark under the Road Traffic Act. Thus, even if police officers play an actual role in the order keeping line by means of the external range of the place where the assembly or demonstration takes place, or by means of the reduction in the inside the place, etc., it cannot be said that it is a order keeping line

Meanwhile, Article 19(1) of the Assembly and Demonstration Act provides that “a police officer may enter the place of an assembly or demonstration after informing the organizer of the assembly or demonstration of his/her entrance to the place of the assembly or demonstration: Provided, That entry to the place of an indoor assembly or demonstration may be permitted only in cases of urgency for the performance of his/her duties.” Article 19(2) provides that “the organizer of an assembly or demonstration, moderators, or the manager of the place shall cooperate with the police officer in the performance of his/her duties to maintain order.” Article 19(1) of the Assembly and Demonstration Act permits a police officer to enter the place of an assembly or demonstration for the maintenance of order.” Although Article 19 of the Assembly and Demonstration Act provides only notification to the organizer and uniform wearing as the requirement for police officer’s entry for the maintenance of order at the place of an outdoor assembly or demonstration, in light of the constitutional value and function of the freedom of assembly, the guarantee of the right to assembly and demonstration, and the legislative purpose of the Assembly and Demonstration Act, such as harmony with public safety and order, a police officer shall also be limited to the minimum extent (see, 10.

B) On the grounds indicated in its reasoning, the lower court determined to the effect that: (a) the instant order keeping line set at the place of assembly as of July 25, 2013, rather than the form of possession of a part of the place of assembly, ought to be set at the outside of the place of assembly; (b) it cannot be deemed that the instant order keeping line was lawfully set; and (c) even if the so-called induced order keeping line was formed by posting police officers for the purpose of installing the order keeping line, it cannot be deemed as the order keeping line under the Act; and (d) it cannot be deemed as a police officer’s possession of a part of the place of assembly by leaving the place of assembly under the pretext of the order keeping line at the time of the above assembly cannot be deemed as the establishment of the order keeping line under the Act, on the ground that the establishment of the order keeping line

Examining the reasoning of the judgment below in light of the above legal principles and records, it is inappropriate for the court below to determine that the establishment of the order keeping line of this case was unlawful on the premise that the order keeping line under the Assembly and Demonstration Act should be set at the outside of the place where the assembly is held, or that the police officers posted at the place of assembly cannot constitute the order keeping line under the Assembly and Demonstration Act immediately on the ground

However, in light of the fact-finding and the form of setting up the order keeping line of this case, the location and size of the place of assembly held on July 25, 2013, and the area of the order keeping line of this case’s possession at the place of assembly, etc., the order keeping line of this case cannot be deemed to have been set at the minimum scope necessary for protecting assembly or demonstration and maintaining public order. Moreover, it cannot be deemed that the establishment of a line for maintaining public order under the Assembly and Demonstration Act, as determined by the lower court, for police officers entering the place of assembly and demonstration to possess part of the vessel after having entered the place of assembly and demonstration. Moreover, it is difficult to view that police officers posted such vessel to the minimum

Therefore, the lower court’s conclusion that the police officers, who continuously possessed part of the place of assembly under the pretext of the establishment of the order keeping line or the inducement line, cannot be deemed lawful, is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the maintenance line, the principle of excessive prohibition, and the legitimate execution of duties subject to the protection of the crime of obstruction of performance of official duties under the Act

2) As to the assertion that the establishment of a maintenance line is legitimate as a compulsory enforcement under the Act on the Performance of Duties by Police Officers

On July 25, 2013, the lower court determined to the effect that the act of installing the order keeping line of this case in the assembly place cannot be deemed legitimate execution of duties as an administrative forced performance pursuant to Articles 5(1) and 6 of the Act on the Performance of Duties by Police Officers, on the ground that there was no participant in the assembly at the time of the assembly, who did not commit a crime and damage to the assembly, or who did not follow the control of the organizer of the assembly; in light of the size of police officers and participants in the assembly, there was no need for police officers to enter the assembly place to possess the order keeping line in advance; and therefore, there was no urgent obstacle to the police to the extent that it is necessary to install the order keeping line in the assembly place on July 25, 2013.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine regarding administrative enforcement based on the Act on the Performance of Duties by Police Officers, discretion to exercise police power, and legitimate performance of duties subject to protection of obstruction of performance of official duties, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

B. As to Defendant 3’s obstruction of performance of official duties on August 21, 2013

For the reasons indicated in its reasoning, the lower court upheld the first instance judgment, which determined that the act of the police officers belonging to the Seoul Southern Police Station to exercise a tangible power to participants at the assembly on August 21, 2013 or to arrest Nonindicted 2 as an offender in the crime of obstruction of performance of official duties cannot be deemed a lawful act, and thus, the act of the Defendant 3, who attempted to restrain, cannot be deemed as constituting the crime of obstruction of performance of official duties

The ground of appeal argues that the lower court’s finding of facts, which is the basis of the lower judgment, is merely an error in the selection of evidence and the determination of the value of evidence belonging to the free trial of the lower court

Even if examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding lawful performance of duties, etc. subject to protection of the line of order and the crime of obstruction of performance of official duties under the Act, or by exceeding the bounds of the principle

C. As to the Defendants’ bodily injury resulting from arrest

1) As to the assertion that the crime of arrest was committed.

The crime of arrest, as a continuous crime, has been committed in time to the extent that it can be recognized that the arrest is clearly binding on the human body freedom, and if the arrest does not reach the same degree and is temporarily established, the attempted crime of arrest is established only.

Based on the circumstances indicated in its reasoning, the lower court rejected the Prosecutor’s allegation in the grounds of appeal disputing the Defendants’ act based on the determination that the Defendants’ act was merely a temporary or partial deprivation of Nonindicted Party 1’s freedom of physical activities, and thus cannot be deemed to have reached the conclusion of arrest.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the acceptance of an arrest crime, or by exceeding the bounds of the principle of free evaluation of evidence against logical

2) As to the assertion that the crime of bodily injury resulting from arrest constitutes injury

In the crime of bodily injury resulting from arrest, it refers to an injury resulting from a change in the victim’s body and health condition and a disturbance in the function of life. If the injured party’s wife is extremely minor and the injured party’s body does not need to receive treatment, and the injured party’s daily life can be naturally cured upon the passage of time, then it cannot be deemed that the injured party’s physical health condition was changed or that the injured party’s life function was hindered (see, e.g., Supreme Court Decisions 2003Do2313, Jul. 11, 2003; 2009Do1934, Jul. 23, 2009).

For reasons indicated in its holding, the lower court rejected the Prosecutor’s grounds of appeal disputing this part of the facts charged, by maintaining the first instance judgment that acquitted the Defendant of this part of the charges, on the grounds that it is difficult to deem that the victim was unable to function as a livelihood due to the arrest of the Defendants, or the fact that the victim suffered injury

The ground of appeal argues that the lower court’s finding of facts, which is the basis of the lower judgment, is merely an error in the selection of evidence and the determination of the value of evidence belonging to the free trial of the lower court

Even if examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the injury by arrest, the probative value of the certificate of injury, and the causal relationship between the arrest and the injury, or by exceeding the bounds of

The Supreme Court precedents cited in the grounds of appeal are different from this case, and thus, are inappropriate to be invoked in this case.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)