Defendant

Defendant

Before the trial (public trial) the Prosecutor of the Supreme Court

Man-Ma Law Firm, Attorneys Oh Gyeong-hee

Daegu District Court Decision 2016Kadan497 decided December 16, 2016

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

A criminal defendant shall be confiscated with evidence seized subparagraph 3.

The defendant shall additionally collect 200,000 won.

Of the facts charged in the instant case, each of the obstruction of performance of official duties, and each of the injury is acquitted.

The summary of the acquittal portion in this judgment shall be publicly announced.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

The police officers did not present a warrant of arrest in the course of attempting to arrest the defendant, and did not have any opportunity to defend himself/herself. The obstruction of performance of official duties and the crime of injury in this case constitute legitimate self-defense as an act to resist the above illegal arrest by the police officers, which is an act to resist the illegal arrest by the police officers. Nevertheless, the judgment below convicting the police officers of this error of law or of misunderstanding of legal principles.

B. Unreasonable sentencing

The punishment sentenced by the court below (three years of imprisonment, confiscation, and collection) is too unreasonable.

2. Judgment on misconception of facts and misapprehension of legal principles

A. Summary of the facts charged

At around 15:25 on June 21, 2016, Non-Indicted 1 and Non-Indicted 2 belonging to the Gyeongbuk Provincial Police Agency criminal and narcotics investigation group attempted to arrest the defendant due to the suspicion of ○○○○○ Dong △dong located in Ansan-dong ( Address 1 omitted), and Non-Indicted 1 tried to capture the defendant due to the suspicion of scopon medication, etc. with a warrant of arrest, and attempted to capture the police officers, and then Non-Indicted 1 opened the defendant's scopon substitute (the fourth finger), opened the defendant's scopon substitute (the fourth finger), opened the defendant's scopon substitute (the first hand), and again, opened the right side of Non-Indicted 1's left finger (the second hand), obstructed the police officers' legitimate execution of their duties, and obstructed Non-Indicted 1's treatment on the right side of the defendant, and completed the second week 2's treatment and treatment on the left side of the second week.

B. The judgment of the court below

For reasons indicated in its holding, the lower court found the Defendant guilty of this part of the facts charged on the ground that: (a) Nonindicted 1 and Nonindicted 2, whom the Defendant had performed lawful official duties for executing arrest warrant, committed assault as indicated in the facts charged; and (b) the Defendant’s act cannot be deemed as legitimate self-defense.

C. Judgment of the court below

1) When a judicial police officer executes a warrant of arrest, he/she shall present the warrant to the suspect (Articles 200-6 and 85(1) of the Criminal Procedure Act), and give him/her an opportunity to defend himself/herself by presenting the warrant of arrest (Article 200-5 of the Criminal Procedure Act). The presentation or notification of the warrant of arrest should be made in advance before entering an exercise of real force for the arrest, but it should be done without delay in the process of putting or suppressing the suspect who runs away or who is against violence (see Supreme Court Decision 2007Do1006, Feb. 14, 2008).

Meanwhile, the crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established only when the performance of official duties by a public official is legitimate. Here, legitimate performance of official duties refers to cases where the act is within the abstract authority of a public official, as well as the legal requirements and methods concerning specific performance of official duties. If a police officer intends to arrest a suspect by force without complying with the aforementioned due process, it cannot be deemed a legitimate performance of official duties. If the arrest of a police officer goes beyond legitimate performance of official duties and the illegal arrest is inevitable, it cannot be deemed that the arrest of a police officer goes against the lawful performance of official duties. Thus, the act of injuring a police officer during the process of resisting the suspect from arrest is an act to escape from the current unfair infringement of body caused by illegal arrest, and thus, it constitutes legitimate self-defense (see Supreme Court Decision 2006Do2732, Nov. 23, 2006).

2) Examining the following circumstances acknowledged by the lower court and the lower court based on the evidence duly admitted and examined by the lower court in light of the legal doctrine as seen earlier, it is difficult for police officers Nonindicted 1 and Nonindicted 2 at the time of the instant case to lawful performance of duties to leave the exercise of force for arrest without presenting the warrant of arrest to the Defendant or notifying the reasons for arrest, etc.

① On June 21, 2016, the police officers Nonindicted 1 and Nonindicted 2, who belong to the Gyeongbuk Provincial Police Agency, informed Nonindicted 3 of the administration of phiphonephones, and, on June 21, 2016, upon Nonindicted 3’s aid from Nonindicted 3, the Defendant went back to the front door after having been living. At the time, the Defendant was off from the front door, and Nonindicted 1 and Nonindicted 2 was off from the front door, but the Defendant asked Nonindicted 1 and Nonindicted 2 to present the warrant of arrest by saying, “on the face of a police officer, Nonindicted 1 and Nonindicted 2, who was in the Gyeongbuk Provincial Police Agency.”

② In order to present a warrant of arrest, search, and seizure, Nonindicted 1 discovered that the Defendant, who was engaged in cleaning the room while the Defendant was living in, was able to do so by her hand, and her fingers. The Defendant intending to run away from the room, she saw her hand, and she was flicked by Nonindicted 1’s body, and Nonindicted 2 her body she was flicked by Nonindicted 1’s hand. Nonindicted 1, who did not her right hand hand, was flicked by Nonindicted 1’s inner part of the Defendant’s inner part, and Nonindicted 1, who she was flicked by her locking the Defendant over the floor, but she was flicking the Defendant’s left hand, but she was released by Nonindicted 1 and Nonindicted 2, who attempted to escape the Defendant’s body after she was arrested and inspected the Defendant’s body, and then the Defendant’s she was released by Nonindicted 1 and Nonindicted 2.

③ In light of the above developments of arrest, the Defendant merely received only notification from the police officers belonging to the above police officers, but did not know the reason for arrest, etc., and appears to have taken place in the way to avoid such arrest. Even if the Defendant used plastic goods (under the on-site photograph image, this seems to be small brooms) as his hand before the occurrence of the instant case and attempted to flee after demanding the presentation of a warrant, the Defendant did not actively use violence against the above police officers until Nonindicted 1 and Nonindicted 2 attempted to arrest the Defendant.

④ At the time, the arrest site was the inside of the building in which the defendant was living, and the defendant was in front of his visit, and Nonindicted Party 1 and Nonindicted Party 2 did not have any circumstance to deem that the defendant attempted to abscond from the outside or attempted to resist violence from the outside. Rather, as the defendant first demanded the presentation of an arrest warrant, it was possible for police officers to give the defendant an opportunity to defend himself/herself by presenting the warrant of arrest before moving to the exercise of the real force for arrest, or by giving him/her an opportunity to defend himself/herself. Nevertheless, Nonindicted Party 1 and Nonindicted Party 2 notified the reason for arrest before entering the exercise of the real force for arrest and give him/her an opportunity to defend him/her, and immediately after arresting the defendant, he/she tried to arrest him/her, and then notified him/her of the principle that he/she would not have been compelled to do so after arresting him/her and giving him/her an exceptional opportunity to do so. However, the principle that he/she would have been compelled to do so after arresting him/her.

⑤ In the process of resisting the above arrest, the Defendant committed obstruction of performance of official duties and injury, such as the description of the instant facts charged.

3) If so, the Defendant’s use of force during the process of resisting the above police officer’s arrest does not constitute obstruction of performance of official duties, and during that process, the Defendant’s act of inflicting bodily injury on the police officer constitutes self-defense under Article 21(1) of the Criminal Act and thus, illegality is dismissed.

Nevertheless, the court below erred by misapprehending the legal principles and thereby adversely affecting the conclusion of the judgment. Therefore, the defendant's above assertion is with merit.

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below that found the defendant not guilty of obstruction of performance of official duties, each injury, and the remaining guilty part as concurrent crimes under the former part of Article 37 of the Criminal Act shall be reversed in its entirety. Therefore, without examining the defendant's assertion of unfair sentencing, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the judgment below shall

The summary of the facts of the crime recognized by this court and its evidence is as follows: (a) deleted the part of “3. obstruction of performance of official duties and injury” in the criminal facts column of the judgment of the court below; and (b) deleted “each legal statement of Nonindicted 1 and Nonindicted 2,” and “written statements of Nonindicted 1 and Nonindicted 2,” in the summary of the evidence column of the judgment of the court below, as stated in each corresponding column of the judgment of the court below; and (c) thus, they are cited in accordance

1. Article applicable to criminal facts;

Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) (the point of administration and possession of Meptama cambacide) of the Act on the Control of Narcotics, Etc., Article 329 of each Criminal Act (the point of larceny) and the choice of each imprisonment with prison labor.

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

Narcotics crimes need to be strictly punished with social and personal harm. The defendant has many records of punishment for the same kind of crime, and the defendant has committed the crime of this case during the period of repeated crime due to the same kind of crime.

On the other hand, the Defendant recognized the instant thief crime and opposed to his mistake. The victim of the instant thief is not punishable by the Defendant.

The above circumstances and other conditions of sentencing specified in the records and arguments of this case, such as the defendant's age, character and conduct, environment, motive and background of the crime, circumstances after the crime, etc., shall be equally considered and determined as the order.

The summary of each part of the facts charged is as indicated in Article 2-2(a). As seen in Article 2-2(c) of the Criminal Procedure Act, each of the facts charged against police officers Nonindicted 1 and Nonindicted 2 constitutes a case where there is no proof of criminal facts, and thus, each of the facts charged against Nonindicted 1 and Nonindicted 2 pursuant to the latter part of Article 325 of the Criminal Procedure Act constitutes a case where each of the facts charged against Nonindicted 1 and Nonindicted 2 is not a crime, and thus, he/she shall be acquitted in accordance with the former part of Article 325 of the Criminal Procedure Act

Judges Kim Jong-Gyeong (Presiding Judge)