The case holding that the act of towing the driver who refuses to take a drinking test to the police box for the purpose of measuring the drinking alcohol cannot be deemed a lawful performance of official duties.

The case holding that in a case where the police officer intended to direct the defendant into a police box for drinking alcohol test only for the purpose of the measure of drinking alcohol test, and the defendant's attempt to arrest the defendant as an offender in the act of committing a crime of domestic violence, and even if he intended to arrest the defendant as an offender in the act of committing a crime of domestic violence, if the police officer failed to inform the suspect of the summary of the crime, the reason for arrest or detention, and the opportunity to defend him as prescribed by the Constitution and the Criminal Procedure Act at the time of the arrest, and if the police officer attempted to direct the defendant into a military force without notifying him of the fact that he was arrested as an offender in the act of committing a crime of domestic violence, the act of the police officer cannot be viewed as legitimate performance

Article 136(1) of the Criminal Act

Defendant

Prosecutor

Seoul Criminal Court Decision 93No8439 delivered on June 23, 1994

The appeal is dismissed.

We examine the grounds of appeal.

The court below found, based on macroficial evidence, that the non-indicted, who was the victim, was found to have driven a motor vehicle in violation of the vehicle line while the non-indicted discovered the fact of driving the motor vehicle in order to take a drinking test, and requested the police box to take a drinking test, but refused the request by the defendant while refusing to drive the motor vehicle, and led the defendant to the police box. The court below found that the defendant was satisfed with the outer satfics that require a day medical treatment by assaulting the above police box while opposing the situation, such as cutting down the satisf, and assaulting the police box, and then caused an emergency arrest or detention of the suspect without a warrant, as provided in the Constitution and the Criminal Procedure Act at the time of the arrest, the court below held that the suspect cannot be arrested or detained unless the suspect was arrested as a flagrant offender without a warrant, and there is no opportunity to defend him/her that he/she can be appointed a defense counsel. Thus, it cannot be viewed that the above warning was a lawful arrest or detention of the defendant.

If the facts are as determined by the court below, it is only for the measurement of drinking alcohol, and it is doubtful that the above police officer intended to arrest the defendant as an offender in the act of committing a crime of drinking or refusing to take a drinking, and even if he intended to arrest the defendant as an offender in the act of committing a crime of domestic violence, the above police officer's act of arresting the defendant as an offender in the act of committing a crime of domestic violence without notifying him of the fact that he was arrested as an offender in the act of committing a crime of domestic violence, cannot be deemed a legitimate performance of official duties. Thus, the court below's decision to the same purport is just, and there is no error of law in the misapprehension of legal principles as to the legality of the performance of official duties, such as the theory of lawsuit.

There is no reason to discuss this issue.

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

Justices Kim Jong-soo (Presiding Justice)