Whether a police officer's act of compelling the suspect without a warrant is a legitimate act of executing official duties where the suspect who meets the requirements for urgent arrest refuses voluntary movement.

As long as the suspect meets the requirements for emergency arrest, the compulsory arrest for the purpose of emergency arrest should be regarded as the legitimate performance of official duties by the police officer, and therefore violence or intimidation against this constitutes the crime of obstruction of performance of official duties.

Article 136(1) of the Criminal Act; Article 144(1) of the Criminal Act; Article 206(1) of the Criminal Procedure Act

Defendant 1 and one other

Prosecutor (limited to Defendant 1) and Defendants

Seoul District Court Southern Branch Court (80 High Gohap399)

Of the judgment of the court below, the part on Defendant 1 is reversed.

Defendant 1 shall be punished by imprisonment for a term of one and half years.

One hundred fifteen days out of the detention days prior to the declaration of the original judgment shall be included in the above sentence.

The prosecutor's appeal against Defendant 1 and the appeal against Defendant 2 are dismissed, respectively.

The first point of the gist of the grounds for appeal by Defendant 2 is that the Defendant was on the spot and did not commit the crime of prosecution. The court below found the Defendant guilty, which affected the conclusion of the judgment by misunderstanding the facts, and the second point of the grounds for appeal by the Defendant is that the court below erred by misapprehending the legal principles on the crime of obstruction of performance of official duties and thereby adversely affected the judgment. In other words, the act of obstruction of performance of official duties by the Defendant was committed in the course of Non-Indicted 1 and Non-Indicted 2 of the Dong police station, which was located in the Doldo hotel located in Seoul.

First, since non-indicted 3 did not comply with the voluntary movement, the act that the police officers forced the movement to the Dong cannot be a legitimate execution of official duties; and

Second, when police officers investigate crimes outside the jurisdiction, they shall report to the chief prosecutor of the competent district public prosecutor's office or the chief of the branch office, but the above police officers are present at the site of this case without following the above reporting procedures, so the execution of duties by the above police officers cannot be deemed legitimate; and

Third, even if the above police officers attempted to forced the non-indicted 3 to force the non-indicted 3, the urgent detention under the Criminal Procedure Act can only be made a prosecutor or a senior judicial police officer, but it is nothing more than a judicial police officer, not a senior judicial police officer, and since the above police officers' efforts to force the non-indicted 3 to go to the non-indicted 3 cannot be regarded as a legitimate execution of official duties, the crime of obstruction of performance of official duties can not be established even if the above police officers committed violence or intimidation against the person, and there is an error of law by applying the rate of special obstruction of official duties, and the summary of the defendant's grounds for appeal, the summary of the defendant's grounds for appeal, and the summary of the grounds for appeal by the attorney of the defendant 1 is unfair because the sentence imposed by the court below is too unreasonable, and the summary of the grounds for appeal against the defendant 1 of the prosecutor's appeal against the defendant 1 of the court below is unreasonable because the sentence imposed by the defendant of the

Therefore, the first examination of the defendant 2's assertion of mistake of facts is conducted in light of the records of this case, and the examination of the various evidences duly adopted by the court below can sufficiently recognize each criminal facts of this case by the defendant, and even if the records of this case are examined, there is no error of law as pointed out in the process of fact-finding by the court below. Thus, the argument of mistake of facts is groundless.

The following facts are examined as to the violation of the above law. The defendant's act of non-indicted 3, including the above non-indicted 1 and the above non-indicted 4, can be conducted by the prosecutor or the chief of the branch office of the district public prosecutor's office, and in case of emergency, it is clear in Article 206 of the Criminal Procedure Act that the prosecutor's approval or the chief prosecutor's office may report after the fact. According to the records of the prosecutor's evidence investigation as to the non-indicted 1 and 4 and the records of the witness examination as to the non-indicted 2 and 4 of the court below's judgment, the non-indicted 3's act of non-indicted 1 and the non-indicted 1 and the non-indicted 4's act of the above non-indicted 3's act of the non-indicted 1 and the non-indicted 1 and the defendant's non-indicted 3's arrest warrant was issued on August 28, 1980 to the non-indicted 1 and the non-indicted 1 and the defendant 1 and the defendant's office.

Finally, considering the above argument on unfair sentencing, comprehensively considering all the circumstances indicated in the records, such as the age, character and conduct, intelligence and environment of each defendant, motive, means, consequence, etc. of the crime, the sentencing of the court below on the defendant 2 is inappropriate and inappropriate because the sentencing of the defendant 1 is too inappropriate, but it is recognized that the sentencing of the defendant 1 is more inappropriate than that of the defendant 1. In this regard, the appeal by the defendant 1 is well-grounded.

Therefore, since the appeal by Defendant 2 and the prosecutor against Defendant 1 are without merit, each of them is dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the members of the party are again decided as follows.

The criminal facts of Defendant 1 recognized as a party member and the summary of the evidence are as shown in each corresponding case of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

Of the so-called judgments by Defendant 1, each special obstruction of the performance of official duties against the police officers Nonindicted 2 and 4 is subject to punishment under Articles 144(1) and 136(1) of the Criminal Act; Article 144(2) and (1) of the Criminal Act; Article 136(1) of the same Act is subject to Articles 151(1) and 30 of the Criminal Act; and Article 151(1) of the same Act is subject to punishment under Articles 40 and 50 of the Criminal Act, since each of the above crimes constitutes several crimes, the punishment for the special obstruction of the performance of official duties against the police officers Nonindicted 2 and 4 is subject to punishment under Articles 144(1) and 136(1) of the same Act; and since the above defendants are sentenced to punishment under Article 53(1) of the Criminal Act, and are sentenced to punishment under Article 53 and Article 55(1) of the same Act, and include the sentence under Article 155(1) of the same Act within the term of imprisonment within 6.

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

Judge final (Presiding Judge) Kim Jong-dae et al.