[1] The police officer's duty of care to use gas guns for arresting criminals

[2] The case holding that the State is liable to compensate for damage where a police officer arrested a criminal under his/her real name as rubber dogs emitted from gas along with the gas in the vicinity of the gas gun while arresting the criminal

[1] A police officer may use a gas gun within the minimum scope when necessary to arrest or escape a criminal, to protect the life or body of another person or police officers, to suppress resistance against the performance of official duties. However, the gas gun is so-called dangerous equipment that may cause harm to the life or body of a person if used for ordinary usage, and the gas gun is in the vicinity of a person, and thus, in the event it is emitted in the vicinity of a rubber dog, it may cause harm to the human body by launching the rubber dog together with gas. Thus, a police officer using it has the duty of care to prevent accidents caused by the use of the gas gun in advance by complying with the minimum safety rules required for the use of the gas gun, such as not emitting the face of the other party at a distance close to the other party in order to prevent harm to the human body.

[2] The case holding that the State's liability of compensation is recognized where the rubber dog emitted with the gas was real name of the rubber dog emitted along with the gas due to the snow of the criminal while arresting the criminal who was infinite by the police officer.

[1] Articles 10 and 10-3 of the Act on the Performance of Duties by Police Officers, Article 12(1) of the Regulations on the Criteria for Using Police Equipment / [2] Articles 10 and 10-3 of the Act on the Performance of Duties by Police Officers, Article 12(1) of the Regulations on the Criteria for Using Police Equipment, Article 2 of the State Compensation Act

[1] Supreme Court Decision 93Da9163 delivered on July 27, 1993 (Gong1993Ha, 2404) Supreme Court Decision 98Da63445 delivered on March 23, 199 (Gong199Sang, 744 delivered on December 10, 199)

Plaintiff 1 and one other (Attorney Lee Jae-hwan, Counsel for the plaintiff-appellant)

Korea

Busan High Court Decision 2001Na10632 delivered on September 6, 2002

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

1. Summary of the judgment of the court below

A. The lower court acknowledged the following basic facts based on the evidence produced therefrom.

(1) On October 29, 1997, Plaintiff 1 (hereinafter referred to as “Plaintiff”) laid off, among the second floor houses owned by the house located in the house located in the house located in the south-gu, Busan Metropolitan City, which had been living together with the plaintiff 1, a woman living together in the room in which the kitchen was attached, the plaintiff 1, a woman living together with the plaintiff 1, who is a money problem, and took out after school, the kitchen, the kitchen, etc. while taking the kitchen, etc., and putting the hack pipe using the clothes, which was discharged from the clothes, and then dumped and dumped, damaged and dump, etc.

(2) Although Nonparty 2, 3, and 5, the police officer of the Busan Southern Police Station, who was called upon receiving the report, demanded the Plaintiff to stop the operation and get out of the house, the Plaintiff, including Nonparty 4, 5, and 6, who was a police officer of the Busan Southern Police Station, who was called for the Defendant, to stop the operation of the Defendant, but the Plaintiff resisted Nonparty 2 by putting the pipe with a knife and cutting the pipe, and putting the rubber door connected to the gas siren, and then cut the gas siren in a knife with a knife, cut the gas stife in one hand, while putting the other hand, and putting the knife with a knife with a knife.

(3) At that time, Plaintiff 1 went out of Na and “the Plaintiff is her husband, who is her husband, and was engaged in narcotics.” As such, Nonparty 2 et al. thought that the Plaintiff was able to engage in gas explosion in a sudden state, and sent a warning to the Plaintiff that the Plaintiff would launch gas guns without complying with police instructions. Nevertheless, Nonparty 2 asked the Plaintiff to control the Plaintiff by using a gas gun in possession, and led the Plaintiff to pressure and arrest the Plaintiff on the alleyway when the Plaintiff was discharged from the alley. However, the rubber dog separated from the 2nd launch was clearly right side of the Plaintiff’s right side, and caused the Plaintiff to suffer from heat in the mouth.

B. The court below rejected the plaintiffs' assertion that the non-party 2, a police officer, was responsible for compensating the plaintiffs for damages caused by the illegal act of the non-party 2, because the non-party 2, who launched gas guns to stop the plaintiff's difficult operation, had a duty of care to launch gas guns toward their upper part, and caused the plaintiff to leave the upper part of the gas guns near the plaintiff's right side, and thus, the non-party 2, a rubber dog separated from the gas guns, was blicked inside the plaintiff's right side, so the defendant did not have a duty of care to remove gas guns to stop the plaintiff's difficult operation, but the non-party 2's assertion that the non-party 2's gas guns used by the non-party 2, a five dump gun with the maximum width of gas to 20mm, and that the plaintiff's 2-1 meter can not be found to have been able to use the gas gun's front part of the gas guns at the time of launching the gas guns.

2. Judgment on the grounds of appeal

However, we cannot accept the above recognition and judgment of the court below as it is.

A. A. A police officer may use a gas gun within the minimum scope when necessary to arrest or escape a criminal, to protect the life or body of another person or police officer, to suppress resistance against the performance of official duties. However, a gas gun is so-called dangerous equipment that may cause harm to the life or body of a person if used for ordinary usage, and the gas gun is in the vicinity of a person, and thus, in the event it is emitted in the vicinity of a rubber dog, it is likely to cause harm to the human body by launching the rubber dog together with gas. Thus, a police officer using it has a duty of care to prevent an accident due to the use of the gas gun by complying with the minimum safety rules required for the use of the gas gun, such as not emitting the other party’s face near the other party in order to prevent harm to the human body.

B. According to the facts and records of the court below, the location of the accident in this case is about 1.5 meters wide from the part of the plaintiff's kitchen, and the kitchen is higher than 20cm high from the floor of the kitchen, and the plaintiff emitted a gun from the garrising to the garrising 20cm high from the part of the plaintiff's body due to the plaintiff's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's secret.

In addition, in light of the circumstances of the accident above, the injury suffered by the plaintiff is a damage within the ordinary foreseeable range at the time of gas guns emission in the above circumstances, and it cannot be deemed as a damage due to special circumstances (the original judgment recognizes that the rubber dog separated from the carbon exchange at the time of launching is to fall within the range of 1st century due to air resistance, but it is doubtful whether it can be recognized such facts only with the description, etc. in No. 4-61 of evidence No. 4, and even if so, it can be sufficiently predicted that the damage may result in the occurrence of the injury in the event of gas guns emitted from the gas gun to the inside distance exceeding 1st century.)

C. Nevertheless, the lower court determined that Nonparty 2 was not negligent on the ground that there was no evidence to acknowledge that Nonparty 2 emitted gas guns in the Plaintiff’s eye at the time of the instant accident, and there was no assertion or proof on the fact that there was a special circumstance that the rubber dog separated from carbon at the time of the instant accident was anticipated to be clear in the Plaintiff’s eye. In so doing, the lower court erred by misapprehending the rules of evidence or by misapprehending the legal doctrine on the duty of care at the time of the use of gas guns, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case 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 Ji-dam (Presiding Justice)