The prosecutor's appeal is dismissed.

1. In light of the following: (a) at the time when a police officer received a report on a crime of assault and damage to property and called the scene of the instant case, the Defendant was the victim of the assault case; (b) the place where the police officer was dispatched was the place where the Defendant assaulted the victim; and (c) the Defendant did not comply with the police officer’s request to present his personal information; and (d) the Defendant was serving the police officer without complying with the police officer’s request to arrest the victim; (b) the police officer’

Therefore, the judgment of the court below which acquitted the defendant on the premise that the arrest of the defendant in the act of committing an offense was illegal, is erroneous in the misapprehension of legal principles, which affected the

2. Determination:

A. In order to arrest a criminal as a current criminal under the relevant legal doctrine, there should be concerns about punishing a criminal in addition to the punishment of the act, the current situation of the crime, the necessity of the arrest, namely, the necessity of escape or destruction of evidence, and the arrest of a flagrant offender who fails to meet such requirements constitutes illegal arrest, which is not based on the legal basis and without a warrant.

Here, the issue of whether a person satisfies the requirements for arrest of a flagrant offender shall be determined based on the situation at the time of arrest, and the judgment of a prosecutor, judicial police officer, etc. is highly likely to have a reasonable discretion.

However, in a case where a prosecutor or a judicial police officer, etc.’s judgment on the fulfillment of the requirements has considerably lost reasonableness in light of the empirical rule even considering the situation at the time of arrest, such arrest should be deemed unlawful (see Supreme Court Decision 2011Do3682, May 26, 201). Furthermore, if a police officer attempted to arrest a current criminal with a real force even though he/she failed to meet the requirements for arrest of a flagrant offender, the arrest cannot be deemed a lawful performance of official duties, and the arrest of a flagrant offender is unlawful by exceeding the lawful performance of official duties.