[1] Requirements to evaluate police officers' restraint measures under Article 6 of the Act on the Performance of Duties by Police Officers as legitimate performance of duties, and criteria to determine whether police officers' restraint measures are legitimate

[2] Whether an act of causing a neighbor to supposed by significantly sound or by leaving a large volume of sound in his/her residential area constitutes a light crime under the Punishment of Minor Offenses Act (affirmative)

[3] The case holding that in a case where the Defendant was charged with obstruction of performance of official duties on the ground that: (a) the Defendant was a person who has reported 112 reports several times by neighboring residents due to serious height, humiliations, and loud music sound, etc. at ordinary house; (b) the Defendant’s house was called to open a door to the police officer Gap and Eul, who was dispatched after receiving a report of 112 that the Defendant’s house was disturbed, but she took a bath; and (c) the police officers conspired with the Defendant by threatening the police officers to take the electric breaker for the purpose of deceiving the Defendant, using the electric breaker for the electric breaker, and by threatening the police officers, and obstructing the performance of duties on the duty of 112 reported, the Defendant erred by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, without exhaust all necessary deliberations, and by misapprehending the legal principles on the interpretation and application of the Act on the Performance of Duties by Police Officers and the legality of the performance of Public Duties, etc.

[1] Article 1 of the Act on the Performance of Duties by Police Officers prescribes matters necessary for police officers to protect the people’s freedom and rights and to maintain public order in society, and thus, ex officio by police officers should be exercised to the minimum extent necessary to perform their duties (Article 1). Article 2 of the Act on the Performance of Duties by Police Officers includes the protection of people’s lives, bodies, and property (Article 1), prevention, suppression, and investigation of crimes (Article 2-2), protection of crime victims (Article 2-2), public peace and order maintenance (Article 7).

Article 6 of the Act on the Performance of Duties by Police Officers provides that “If a police officer deems that a criminal act is about to be committed in front of the police officer, the police officer may issue a warning to interested persons to prevent such criminal act, and if it is urgent because such act is likely to inflict harm on human life and body or grave damage to property, the police officer may restrain such act.” The part concerning the restraint of police officers in the above provision is based on the administrative compulsory performance of the police for the prevention of the crime, that is, it is necessary to remove an imminent obstacle to the police in front of the snow, and it is difficult for the police officer to order such act without any time or order such duty to order such act. In order to evaluate a police officer’s restraint pursuant to Article 6 of the Act on the Performance of Duties by Police Officers to lawful performance of duties, it is objectively intended to prevent the act subject to criminal punishment from being committed in front of the police officer’s legitimate performance of duties. However, it is not necessary to determine whether the act is likely to inflict a serious harm on human life and body at the time of the police officer’s immediate action.

[2] An act of snicking neighbors by significantly sounding music sounds or leaving a large volume of sounds in the residential area constitutes “snick disturbance, etc.” as prescribed by Article 3(1)21 of the Punishment of Minor Offenses Act. Police officers may prevent, suppress, and investigate acts constituting a minor crime according to the Act on the Performance of Duties by Police Officers, and may restrain, if necessary, such acts.

[3] The case holding that: (a) the Defendant was indicted for obstruction of the performance of official duties on the ground that he/she exceeded 112 reporting by neighboring residents on several occasions due to heavy desire, humiliation, sound, etc.; (b) the Defendant’s house was called “A” or “B” who called out after having received 112 reporting that he/she did so; (c) he/she saw that police officers would open the door with a philopon; and (d) police officers would take measures to stop electricity blocking to meet the purpose of executing official duties by threatening the police officers to take measures for the prevention of harm to the Defendant’s official duties, and thus, (d) he/she could temporarily stop the Defendant’s duty to prevent the Defendant’s 112 reporting, and thus, (e) did not appear to constitute an unlawful act of obstructing the Defendant’s performance of official duties, and (e) did not appear to constitute an unlawful act of obstructing the Defendant’s performance of official duties, under Article 31 subparag. 21 of the Punishment of Public Officials Act.

[1] Article 1, Article 2 subparags. 1, 2, 2-2, 7, and Article 6 of the Act on the Performance of Duties by Police Officers / [2] Article 3 subparag. 21 of the Punishment of Minor Offenses Act / [3] Article 136(1), Article 14(1) of the Criminal Act, Article 3(1)21 of the Punishment of Minor Offenses Act, Article 1, Article 2 subparag. 1, 2-2, 7, and Article 6 of the Punishment of Minor Offenses Act, Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2012Do9937 Decided June 13, 2013 (Gong2013Ha, 1272)

Defendant

Prosecutor

Busan District Court Decision 2016No3442 Decided November 11, 2016

The judgment below is reversed, and the case is remanded to Busan District Court.

The grounds of appeal are examined.

1. Summary of facts charged

The defendant is a person who has reported over 112 times by neighboring residents due to severe height, humiliation, scopic music sound, etc. in his/her usual house.

On June 8, 2016, at around 23:40, the Defendant: (a) stated that Nonindicted 1 and Nonindicted 2, who was in the position of the Busan Jin-gu ( Address omitted) and ○○○○○○○○ △△△△, the neighbor, on the 112 report, received a report that “The Defendant was satisfying in a philopon; and (b) stated that the Defendant opened a door; (c) but the police officers sent the door “Ye, satch, satfy, satch, satch, satch, satched, satched, satched, satched, satched, and satched,” which is a dangerous object for a police officer to satisfy the Defendant, and (d) stated that “Yek, satfy, satch, knick, and satched,” and police officers.

Accordingly, the Defendant interfered with the legitimate execution of duties concerning the handling of Nonindicted 1 and Nonindicted 2’s 112 reporting duties, a police officer.

2. The judgment of the court below

The lower court reversed the first instance judgment and acquitted the Defendant on the following grounds, on the grounds that it is difficult to view that the instant facts charged were proven without reasonable doubt.

Unlike the facts charged, the police officers seem to have obstructed electricity without prior notice before the defendant's house was put on the house. The prosecutor cited Articles 4(1) and 6 of the Act on the Performance of Duties by Police Officers under the Act on the Performance of Duties by Police Officers. However, in light of the fact that the defendant is not a person subject to relief as stipulated under Article 4(1) of the Act, and the defendant's act is merely a cause of noise, etc., it does not appear that the situation at the time does not constitute "emergency cases where there is a risk of causing harm to human life or body" as stipulated under Article 6 of the Act on the Performance of Duties by Police Officers. The measures taken by police officers cannot be deemed as a warning for the prevention of criminal acts, and it does not meet the legal requirements and methods

It seems that the Defendant used a knife and set off the entrance outside of the entrance seems to have been boomed by the police officer’s resistance to the measures taken by police officers, and it is difficult to readily conclude that the Defendant had knife the knife to threaten the police officers only by Nonindicted Party 1’s statement.

3. Supreme Court Decision

A. Article 1 of the Act on the Performance of Duties by Police Officers prescribes matters necessary for police officers to protect the people’s freedom and rights and to maintain public order in society, and the ex officio of police officers should be exercised to the minimum extent necessary to perform their duties (Article 1). Article 2 of the Act on the Performance of Duties by Police Officers includes the protection of people’s lives, bodies, and property (Article 1); prevention, suppression, and investigation of crimes (Article 2-2); protection of crime victims (Article 2-2); public peace and order maintenance (Article 7).

Article 6 of the Act on the Performance of Duties by Police Officers provides that “If a police officer deems that a criminal act is about to be committed in front of the police officer, the police officer may issue a warning to interested persons to prevent such criminal act, and if it is urgent because such act is likely to inflict harm on human life and body or grave damage to property, the police officer may restrain such act.” The part concerning the restraint of police officers in the above provision is based on the administrative compulsory performance of the police for the prevention of the crime, that is, it is necessary to remove an imminent obstacle to the police in front of the snow and it is difficult for the police to order such act without any time or order such act. In short, in a situation where it is difficult to achieve the purpose, the police officer to directly exercise his/her real force and realize necessary conditions for the police officer by exercising his/her own force without any premise, and it is objectively intended to prevent the act subject to criminal punishment from being committed in front of the police officer’s legitimate performance of his/her duty. However, it is not reasonable to determine whether the act is in front of the police officer’s 20 measures.

Acting to snick neighbors by significantly sound or by leaving a large sound in the residential area constitutes “snick disturbance, etc.” as prescribed by Article 3(1)21 of the Punishment of Minor Offenses Act. Police officers may prevent, suppress, and investigate acts constituting minor offenses in accordance with the Act on the Performance of Duties by Police Officers, and may restrain, if necessary, such acts.

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

(1) After December 17, 2015, the Defendant reported 24 times in total due to noise, etc. from June 8, 2016, which was the date of the instant facts charged, to June 8, 2016. In most cases, most of the time for reporting was night or new wall hours, and among them, the Defendant’s sound of side music, which is likely to cause pain every day due to the sound of side music. Although five new walls are installed, as the Defendant’s music did. It is also the content to confirm whether the instant facts charged were changed to the proposal, or whether the drug was melted.”

(2) At around 23:40 on June 8, 2016, Nonindicted 1 and Nonindicted 2 called the Defendant’s house and called the Defendant’s house to substitute with the Defendant, and requested other patrol officers to provide assistance. In addition, Nonindicted 3 and Nonindicted 4 and arrested the Defendant as a flagrant offender and seized a knife at the time of arresting the Defendant as a flagrant offender. In this case, the following are indicated as the grounds for arrest of the arrest letter prepared by Nonindicted 1 and Nonindicted 2, etc., and the details as follows:

현장에 출동하니 시끄러운 음악 소리와 함께 알 수 없는 고함소리가 나서 진위를 파악하기 위해 출입문을 열어달라고 하자 욕설을 하며 문을 열어주지 않아 1층에 있는 차단기를 내려 전기를 차단하였다. 이때 피고인이 갑자기 문을 열고 나와 식칼을 들고 찌를 듯이 휘두르며 욕설을 하였다. 공소외 2가 피고인에게 “진정하세요. 칼 내려놓으시면 차단기 올려 드리겠습니다. 칼 내려놓으세요.”라고 해도 계속해서 “씨발새끼들 빨리 불켜라, 불 안키면 다 죽여버린다.”라고 하면서 칼을 휘두르며 10분간 대치하다 집에 들어갔다. 10분쯤 뒤에 피고인이 다시 칼을 들고 나와 욕설을 하자 순경 공소외 3이 “칼 내려놓으세요. 내려놓지 않으면 쏩니다.”라고 경고하였다. 그 순간 피고인이 칼을 들고 달려들었고, 경찰관이 테이저건을 쏘아 칼을 바닥에 떨어뜨리고 쓰러뜨린 다음 피고인을 현행범인으로 체포하고 칼을 압수한 것이다.

(3) The prosecutor's protocol of interrogation of the defendant is written as follows.

‘전원을 차단하기 전에 경찰이 문을 열어달라고 하던가요.’라는 검사의 질문에 ‘네, 문 두드리고 인터폰하고 그랬습니다. 초인종을 누르고 얼굴도 안 비춰서 당신 누구냐고 얼굴 좀 확인하자고 성질을 냈습니다. 사람이 요리하고 있는데 밤 12시 넘어서 화가 났습니다. 인터폰을 누를 때는 시끄럽게 만들지 말고 그냥 가라고 말했습니다. 그리고 경찰이 불을 꺼서 문을 열었습니다.’라고 답하였다. ‘그 이후에는 어떻게 하였는가요.’라는 검사의 질문에는 ‘당신들 죽여버리겠다고 화를 굉장히 많이 냈고 고함을 질렀습니다. 죽여버리겠다, 죽고싶냐, 꺼지라고 막말을 좀 했고 문을 닫았습니다. 집에 들어와서 불이 꺼진 집 침대에 혼자 앉아 있었는데 문을 계속 두드렸습니다. 불을 켜고 가라고 했는데 불을 안 켜서 제가 전원을 켜기 위해 나갔습니다. 제가 칼을 들고 나갔습니다. 그것은 저의 방어를 위한 것이었습니다. 제가 불을 켜기 위해 갈 때 그 사람들이 덤빌 수 있기 때문에 칼을 들고 나갔습니다. 그런데 그때 경찰이 전자총으로 저를 쐈습니다.’라고 답하였다. 또 ‘아무리 전원을 껐다고 해도 칼을 들고 위협하는 것은 심하다고 생각하지 않나요.’라는 검사의 질문에는 ‘그 부분은 제가 변호인과 상의해서 왜 제가 그렇게까지 극도로 화가 났는지 자료를 준비해서 따로 제출하도록 하겠습니다.’라고 답하였다.

(4) In the first instance trial, the Defendant’s defense counsel asserted the progress of the case as follows, and agreed to all evidence submitted by the prosecutor. The details of the Defendant’s defense counsel in the lower trial are the same.

Police officers demanded that police officers keep their portraits down several times, open the door door door, and cut off the electric power that they want not to get the Defendant. For several months, the Defendant resisted the police officers out of the house with the knife of their knife while the police officers got from extreme stress.

C. In light of the above facts and legal principles, the following determination is possible.

(1) In the police statement with respect to Nonindicted Party 1, it is written that Nonindicted Party 1 and Nonindicted 2 prevented electricity before the Defendant’s office was put in place. However, if such written statement conforms to objective facts, it is contradictory to the statement that Nonindicted Party 1 and Nonindicted 2 had a large amount of music to the outside before Nonindicted Party 1 and Nonindicted 2 arrive, and that the Defendant had a large amount of music to the outside, and that Nonindicted Party 1 and Nonindicted 2 did not open a door when they arrive in the Defendant’s office.

In line with both the written opinion of the defendant and his defense counsel including the letter of arrest of a flagrant offender against the defendant, the statement of the defendant in the prosecutor's office and the written opinion of his defense counsel, etc., Nonindicted 1 and Nonindicted 2 called the defendant's door but prevented the electricity from being rejected, and the defendant went out of the country, and this is a natural progress.

Therefore, unlike the facts charged, there is room to view that the judgment below, which deemed that Nonindicted 1 and Nonindicted 2 had already prevented electricity before arrival in the Defendant’s house, exceeded the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

(2) The Defendant left the house by blocking electricity between Nonindicted 1 and Nonindicted 2 and 10 minutes. At the time, Nonindicted 2 requested to provide assistance to police officers on patrol, and two police officers were additionally called to the site, and it is natural to view that the Defendant requested assistance because the Defendant used a knife and threatened Nonindicted 1 and Nonindicted 2. If the Defendant requested assistance even though he did not have a knife or was unaware of the police officer’s restraint, it would be very exceptional and difficult to understand that two police officers simply requested additional assistance to control one female who is still disturbed. The Defendant first saw the knife when the Defendant first knife the knife and knife the knife, and knife Nonindicted 1 and Nonindicted 2, knife Nonindicted 1 and knife knife Nonindicted 2, and then knife the Defendant again knife the knife and used the knife situation.

Therefore, unlike the facts charged, there is room to view that the judgment of the court below that the defendant seems to have spent knife knifely as he resisted the police officer's knife while resisting the knife measures.

(3) The Defendant’s appearance or sound of music during the night near his own situation constitutes a nearby disturbance prohibited by Article 3(1)21 of the Punishment of Minor Offenses Act, and thereby, the neighboring residents may not be locked. Nonindicted 1 and Nonindicted 2, upon receiving a report 112, sent out to the Defendant to prevent the crime committed in front of the snow and to prevent the damage to the residents, but the Defendant did not stop an disturbance without opening a door. In such a situation, the Defendant’s control and investigation of the Defendant’s act can be deemed as a police officer’s duty as a person authorized to perform his duties.

In such circumstances, the temporary blocking of electricity that Nonindicted 1 and Nonindicted 2 pass through the Defendant’s house is inducing the Defendant to go out of the house. It appears to be necessary and appropriate measures to suppress, prevent, and investigate the Defendant’s criminal act, and there is room to regard it as a lawful performance of duties, meeting the requirements for immediate compulsory performance under Article 6 within the scope of duties under Article 2, in accordance with the purpose of Article 1 of the Act on the Performance of Duties by Police Officers.

D. Nevertheless, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules without exhaust all necessary deliberations, or by misapprehending the legal doctrine on the interpretation and application of the Act on the Performance of Duties by Police Officers, and the legality of performing official duties, etc., and thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal assigning this error is with merit.

4. Conclusion

The Prosecutor’s appeal is with merit and is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)