The criteria for determining whether a police officer falls under a person subject to non-explosion and the legitimate requirements and details of the non-explosion inquiry

In full view of the purpose of the Act on the Performance of Duties by Police Officers (hereinafter “the Act”), Articles 1(1) and (2), 3(1), (2), (3), and (7) of the Act on the Performance of Duties by Police Officers (hereinafter “the Act”), when determining whether a police officer falls under a person subject to questioning under Article 3(1) of the Act on the Performance of Duties by Police Officers (hereinafter “person subject to questioning”), the determination shall be based on objective and reasonable criteria as to whether a person subject to questioning is a person subject to questioning based on the specific circumstances as at the time of non-examination as well as the information and professional knowledge obtained in advance. However, in order to ask questions to a person subject to non-examination, the police officer may not necessarily be deemed to have suspicion of such fact in the arrest or detention under the Criminal Procedure Act. In addition, in light of the severity of a crime, relevance to a crime, urgency of circumstances, degree of suspicion, necessity of questioning, etc., a police officer may suspend the number of persons subject to questioning in a way that can be accepted within the minimum extent necessary for achievement of the purpose.

Articles 1, 3(1), (2), (3), and (7) of the Act on the Performance of Duties by Police Officers

Supreme Court Decision 2010Do6203 Decided September 13, 2012 (Gong2012Ha, 1700)

Defendant

Prosecutor

Attorney Lee E-ju

Daejeon District Court Decision 2010No2749 Decided September 29, 2011

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. Article 1(1) of the Act on the Performance of Duties by Police Officers (hereinafter “Act”) provides that “The purpose of this Act is to provide for matters necessary for police officers (limited to national police officers; hereinafter the same shall apply) to protect the freedom and rights of the people and maintain public order in society.” Paragraph (2) of the same Article provides that “The ex officio authority of police officers as prescribed by this Act shall be exercised to the minimum extent necessary to perform their duties and shall not be abused.” Article 3(1) of the Act provides that “Any person who has reasonable grounds to suspect that he has committed or is about to commit any crime, or is about to commit any crime which has already been committed or is about to be committed, may stop questioning of the person who is deemed to have knowledge of such fact, or who has not been compelled to answer any question at that place against the will of the people or interfere with traffic, the police officer may not be compelled to accompany the person to the police station or station (hereinafter referred to as “the police officer in question”) in question and may not request the police officer in question.”

In full view of the aforementioned purpose, provisions, structure, etc. of the Act, determination of whether a police officer constitutes a person subject to questioning under Article 3(1) of the Act (hereinafter referred to as “person subject to questioning”), it shall be made according to an objective and reasonable standard as well as the specific circumstances at the time of questioning, and whether a police officer is a person subject to questioning based on information, expertise, etc., which he/she has obtained in advance. However, it cannot be said that a police officer’s arrest or detention under the Criminal Procedure Act requires that a person subject to questioning without questioning may be suspected of such suspicion. In addition, for questioning a person subject to questioning, the police officer may suspend the relevant person in a reasonable manner acceptable by social norms within the minimum scope necessary for accomplishing his/her purpose, and investigate whether he/she carries a deadly weapon by questioning (see Supreme Court Decision 2010Do6203, Sept. 13, 2012).

2. The court below held that the defendant cannot be a person subject to questioning on the ground that the appearance and appearance of the suspect in the previous case of robbery, rape, or the appearance and appearance of the defendant cannot be somewhat different or similar cannot be determined. Even if the defendant becomes a person subject to questioning on the ground that the defendant's act of demanding inspections by tracking the defendant on the vehicle in spite of the police certificate presented by the non-indicted who was a police officer, despite the defendant's intention not to respond to the questioning on the face of the escape, the police officer's demand for questioning on the vehicle in spite of presenting the police certificate by the non-indicted who was the person subject to questioning on the part of the police officer was forced the defendant to answer beyond a verbal expression, and thus, it constitutes an unlawful act that deviates from the method and limitation of the questioning on the part of the police officer, and thus, the crime of obstruction of performance of official duties under the premise of legitimate execution of official duties is not established, and the act of injury committed in the course of opposing such unlawful non-examination

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. First, we examine whether the defendant can be the person subject to the autopsy of this case.

원심판결 이유 및 원심이 적법하게 채택한 증거들에 의하면, 이 사건 당시 경찰관들이 피고인을 불심검문하려던 장소는 이 사건 발생 하루 및 이틀 전에 각 발생한 강도강간미수 사건이 발생한 지역이었고, 시간대도 위 강도강간미수 사건이 발생하였던 시각과 비슷한 무렵이었던 사실, 위 강도강간미수 사건의 용의자에 관하여 ‘20~30대 남자, 신장 170cm 가량, 뚱뚱한 체격, 긴 머리, 둥근 얼굴, 상의 흰색 티셔츠, 하의 검정색 바지, 검정색 신발 착용’ 및 ‘키 175cm 가량, 마른 체형, 안경 착용’이라는 등으로 그 인상착의가 대략적으로 신고되었던 사실, 경찰관들은 위 강도강간미수 사건의 피의자와 관련된 사전 정보를 지득하고 있었는데, 피고인의 인상착의가 경찰관들이 지득하고 있던 사전 정보와 상당 부분 일치하였던 사실을 알 수 있다.

Examining this in light of the aforementioned legal principles, the police officer’s measure of taking the defendant as the object of non-examination was conducted through an objective and reasonable judgment process based on the specific situation at the time of the non-examination of the defendant, and his own prior knowledge and experience, and even if there is part of the difference between the appearance of the defendant’s family's appearance and the appearance of the suspect already obtained, the police officer’s measure of taking the defendant as the object of non-examination cannot be deemed unlawful.

B. Next, we examine whether the police officer’s non-examination of this case against the defendant is illegal.

Examining the reasoning of the judgment below in light of the legal principles as seen earlier, it is permissible for police officers to conduct follow-up activities to stop and ask questions to the defendant. If such activities were conducted in such a way that can be accepted by social norms within the minimum extent necessary to achieve the purpose in light of the severity of the crime, relevance to the crime, urgency of the situation, degree of suspicion, necessity of questioning, etc. In this case, the non-explosion of this case is to search the suspect of the attempted rape, and the defendant's appearance was consistent with the above suspect's appearance and appearance, and the defendant started to flee immediately against the defect that the police officer tried to ask. In such a case, the court below should have determined that the police officer went away from the defendant at the time of tracking the defendant, namely, whether the police officer was aware that the police officer was boarding the vehicle, whether the vehicle was driven in a direction, how the vehicle was operated and how the vehicle was operated, whether the police officer's act was likely to harm the defendant's behavior beyond the scope of social norms and how the police officer consented to the defendant's action.

Nevertheless, the lower court did not reach this conclusion, solely on the grounds indicated in its reasoning, concluded that the police officers’ non-explosive questioning was illegal, and thus acquitted all the charges of obstruction of performance of official duties and injury. In so doing, the lower court erred by misapprehending the legal doctrine on non-explosive questioning, thereby failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal

다. 다만 이 사건 기록에 의하면, 피고인은 자신을 추격하는 경찰관들을 피하여 도망하다가 넘어졌는데, 당시는 새벽 02:20경으로 상당히 어두웠던 심야였고 경찰관들도 정복이 아닌 사복을 입고 있었던 사실, 자신을 추격하는 차량(일반 승용차였던 것으로 보인다)을 피하려다 넘어진 피고인은 주변에 고성으로 ‘경찰을 불러달라’고 요청하여 지나가던 택시기사도 이 소리를 듣고 정차하였던 사실 등을 알 수 있고 여기에 피고인은 원심 법정에 이르기까지 일관하여 이 사건 경찰관들을 소위 ‘퍽치기’를 하려는 자들로 오인하였던 것이라고 진술하고 있는 사정 등을 종합하면, 피고인은 당시 경찰관들을 치한이나 강도로 오인함으로써 이 사건 공무집행 자체 내지 그 적법성이나 자신의 경찰관들에 대한 유형력 행사의 위법성 등에 관하여 착오를 일으켰을 가능성을 배제하기 어려우므로, 원심으로서는 당시 피고인이 자신이 처한 상황을 어떻게 인식하였는지, 피고인에게 착오가 인정된다면 그러한 착오에 정당한 사유가 존재하는지 여부 등에 관하여 면밀히 심리한 다음 범죄성립이 조각될 수 있는지 여부를 신중히 판단하여야 한다는 점을 덧붙여 지적하여 둔다.

4. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)