[1] Requirements for legitimate conduct of a voluntary act

[2] The case holding that since the judicial police officer's accompanying of the defendant to the investigative agency constitutes de facto forced arrest, i.e., illegal arrest, and emergency arrest conducted after a lapse of six hours from the illegal arrest is also unlawful, the defendant's illegal arrest does not constitute "person arrested or detained by law" under Article 145 (1) of the Criminal Code, and thus cannot be the subject of the crime of escape

[1] Article 199(1) of the Criminal Procedure Act provides that "Any investigation necessary to achieve the purpose of an investigation may be conducted: Provided, That compulsory measures shall be limited to cases where there are special provisions in this Act, and they shall be conducted to the minimum necessary extent." Thus, the investigator's accompanying the suspect to the investigative agency in the course of the investigation shall be restricted in real freedom of body of the other party and in actual conditions similar to the arrest. Although the investigator is placed in a similar state with the other party's consent in the process of the investigation, it is not institutional and practical means to suppress accompanying the other party without the warrant, and it is highly probable that the other party's request and the Criminal Procedure Act does not provide various rights guarantee devices to the suspect arrested and detained on the ground of the transfer of the regular arrest and detention stage, etc. Thus, if the investigator merely requests the police to accompany the suspect or the accompanying suspect at any time, or if it is clearly acknowledged that the police officer's voluntary request or voluntary request to accompany the suspect was made for the purpose of the investigation under Article 20(1) of the Criminal Procedure Act, it should be applied.

[2] The case holding that since the judicial police officer's accompanying of the defendant to the investigative agency constitutes de facto forced arrest, i.e., illegal arrest, and the emergency arrest executed after a lapse of six hours from the illegal arrest is also unlawful, the defendant's illegal arrest is not "the person arrested or detained by law" under Article 145 (1) of the Criminal Code, and thus cannot be the subject of the crime of escape.

[1] Articles 199(1) and 200(1) of the Criminal Procedure Act, Article 3(2) of the Act on the Performance of Duties by Police Officers / [2] Articles 199(1) and 200(1) of the Criminal Procedure Act, Article 3(2) of the Act on the Performance of Duties by Police Officers, Article 145(1) of the Criminal Act

Defendant

Prosecutor

Chuncheon District Court Decision 2005No429 Delivered on August 26, 2005

The appeal is dismissed.

1. Article 199(1) of the Criminal Procedure Act provides that "Any investigation necessary to achieve the purpose of an investigation may be conducted: Provided, That compulsory measures shall be limited to the case where there are special provisions in this Act, and they shall be conducted to the minimum necessary extent." Thus, in the course of an investigation, an investigator's accompanying a suspect to the investigative agency in the form of obtaining the consent of the parties concerned is restricted in reality and actually placed in a situation similar to the arrest. Although it is difficult for the investigative agency to restrict the accompanying without a warrant, it is not systematically and practically voluntary as well as systematically because there is no other method to restrain the accompanying of the suspect without a warrant, and it is highly probable that the Constitution and the Criminal Procedure Act may result in a violation of the principle of the Criminal Procedure Act, such as the provision of various rights guarantee devices to the suspect arrested and detained, and thus, voluntary request by the investigative agency to accompany the suspect or to the suspect at any time during the investigation process should be applied to the suspect's voluntary request by the investigative agency only when it is acknowledged that the police officer's voluntary request can be applied to the aforementioned legal principles of the police officer's voluntary request.

2. The following circumstances acknowledged by the court below: ① the police officer was merely 06:00 a new wall, the time and place of which the defendant was sent to the police officer, and the method of accompanying the defendant was also about 10 hours in the vicinity of the defendant's house, and four police officers discovered the defendant who returned home to the new wall and accompanied the defendant who denied the defendant's request for accompanying at the same time; ② Nonindicted 1 stated that the police officer accompanied the defendant was not present at the time of the first prosecutor's statement that the defendant was not present at the police officer's request for accompanying the defendant at his own discretion, and that the defendant was not present at the time of arresting the defendant, and thus, the defendant was not present at the time of his own request for accompanying the defendant without any consent of the police officer at his own discretion, and thus, the defendant was not present at the time of arresting the defendant at the time of the first prosecutor's statement that the defendant was not present at the time of such request, and thus, the defendant's statement was not present at that time.

Therefore, the defendant illegally arrested and is not a "person arrested or detained by law" under Article 145 (1) of the Criminal Act, and thus cannot be the subject of the crime of escape.

3. The court below maintained the first instance court which acquitted the defendant on the ground that the accompanying to the defendant of this case lacks arbitrariness, and therefore, it constitutes a forced arrest conducted without obtaining a warrant, and this constitutes a lawful arrest, and the emergency arrest cannot be seen as a legitimate one, and thus the defendant cannot be the subject of the crime of escape under Article 145 (1) of the Criminal Act. The reason why the court below stated in determining that the accompanying to the defendant of this case is illegal is not inconsistent with the above legal principles. However, the decision of the court below is not inconsistent with the above legal principles, but it is just in the conclusion of finding the defendant guilty of the charge of escape on the ground that the accompanying to the investigation office to the defendant of this case and the emergency arrest were illegal, and there is no error of law such as misunderstanding legal principles which affected the conclusion of the judgment of

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

Justices Park Si-hwan (Presiding Justice)