The case holding that an act of compelling a suspect to commit an act for the purpose of measuring drinking shall not be deemed a legitimate official performance.

It seems to be only for the measurement of alcohol to lead a suspect. This is for the purpose of securing evidence for the crime of violation of the Road Traffic Act, and it is obvious that the suspect was not subject to the verification warrant of the judge without the consent of the suspect. Therefore, it cannot be viewed as legitimate execution of official duties because it is an illegal forced investigation which is not allowed under the Criminal Procedure Act.

Article 136(1) of the Criminal Act, Article 215 of the Criminal Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 10 others (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant

Defendant

Seoul District Court Decision 200Na4192 delivered on February 24, 1994

The judgment of the court below is reversed.

The sentence of sentence against the defendant shall be suspended.

The gist of the grounds for appeal by the defense counsel is that the sentence of the court below is too unreasonable, considering the circumstances such as the fact that the defendant committed a crime under the judgment by admitting a mistake that the defendant committed a crime under the judgment, and the second fact that the defendant is in depth divided, etc., the sentence of the court below is too unreasonable.

Therefore, considering the following facts: (a) the evidence duly adopted by the court below after examining facts; (b) the statement at the court below and the deliberation of the witness at the trial court; and (c) each copy of the suspect examination of police officers (Evidence No. 8,9,16, and 17) as to the police officers, the police officers and police officers who performed traffic patrol are under contact with other patrol vehicles for the occurrence of traffic accidents stated in the facts charged; (c) the police officers and police officers, who were carrying out the traffic patrol, are additionally aware of the fact that there was a significant trace of drinking driving; (d) although the defendant refused to arrest and carry out drinking tests, the police officers and police officers were not subject to restraint of the above 2nd police officers' request for the second time to arrest and arrest the suspect at the time of the above 2nd police officer's request for the second time without the consent of the judge to arrest and arrest the suspect at the time of the above 3rd police officer's request for the second time. However, it is difficult to find that the above act of inducing the above police officer's's request for emergency inspection of the facts.

Therefore, among the facts charged in this case, the obstruction of the performance of official duties constitutes a case where there is no proof of the crime, but the judgment below which found the defendant guilty guilty shall be deemed to have committed an unlawful act that affected the remaining judgment by misunderstanding the facts against the rules of evidence or misunderstanding the legal principles of the obstruction of the performance of official duties

Therefore, without examining the grounds for appeal on unfair sentencing, this Court reverses the judgment of the court below under Article 364(6) of the Criminal Procedure Act without examining the grounds for appeal on unfair sentencing, and decides again following the pleadings.

The summary of the facts charged by the principal source and the evidence thereof are as follows: "to arrest the defendant as a flagrant offender of a drunk driving" in Part II of the facts constituting the crime of the judgment of the court below, and the part of Part IX "in order to arrest the defendant as a flagrant offender of the same person at the same time, and at the same time, to interfere with the arrest of the person in the act of committing the crime of the same kind" shall be cited in accordance with Article

1. Article applicable to criminal facts;

Article 107-2 subparag. 1 and Article 41(1) of the Road Traffic Act, Article 2(2) and (1) of the Punishment of Violences, etc. Act, Article 2(1) of the Criminal Act, Article 257(1) of the Criminal Act (a) of the Provisional Measures such as Fines, etc. Act, Article 4(1) of the Road Traffic Act, the selection of each fine, etc.

2. Aggravation of concurrent crimes;

Article 37 (Aggravation of Punishment for Offense of Violation of the Road Traffic Act by Imprisoning in Judgment with Aggravation of Punishment)

3. Sentence suspended; and

Fines 3,000,000

4. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act (gold 200,000 won shall be converted into one day)

5. Suspension of sentence;

Article 59(1) of the Criminal Act (Aggravated Punishment, Agreement, and Expression of War)

6. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Of the facts charged of this case, the summary of the obstruction of performance of official duties is as follows: "A defendant's failure to comply with the request of the defendant to leave the vehicle in order to arrest the defendant as a flagrant offender of drinking driving by driving a vehicle on the road prior to the Dongyang-dong, Guro-gu, Seoul Metropolitan Government 1 on September 15, 1993, and caused a contact accident by him by driving a vehicle on the road prior to the Dongyang-dong, Guro-gu, Guro-gu, Seoul, and demanded the defendant to leave the vehicle in order to arrest the defendant as a flagrant offender of drinking driving, but he did not comply with the request of the defendant to leave the vehicle in order to carry the vehicle in his hand, and again, he saw the above police belt with her flick belt and flick with the defendant to go to the police station by putting the defendant on the flick-dong 1, 1993." Thus, it constitutes a violation of the Criminal Procedure Act's punishment on the part of the charges of this case.

It is so decided as per Disposition for the above reasons.

Judges Choi Jong-chul (Presiding Judge)