[1] The meaning of "intoxicated condition" under Article 4 (1) of the Act on the Performance of Duties by Police Officers and the standard for determining whether a police officer is a person under relief who needs protective measures under the same Article

[2] Whether a police officer constitutes an illegal arrest in a case where a police officer takes a person who is a suspect for criminal investigation as a victim of the above provision, and takes such person against his/her will, despite the requirement for protective measures under Article 4(1) of the Act on the Performance of Duties by Police Officers, if the police officer

[3] Whether it constitutes an illegal arrest in case of a violation of the procedure that requires a driver to observe when forcing a driver to take a drinking test (affirmative), and whether an act of failing to comply with a request for a drinking test conducted in an illegal arrest may be punished as a violation of the Road Traffic Act concerning refusal to take a drinking test (negative)

[4] In a case where the defendant, who is a cargo driver, committed a violation of the Road Traffic Act (e.g., refusal to take a drinking measure) on the ground that he attempted to escape from the driver's seat again, arrested the police officer, and refused to take a drinking measure as designated by the district, when he escaped in response to the police's refusal to stop driving, the case holding that the judgment of the court below which convicted him on the ground that the defendant cannot be punished as a violation of the Road Traffic Act concerning refusal to take a drinking measure on the ground that he did not comply with the police's refusal to take a drinking measure under illegal arrest, on the ground that he did not comply with the police's refusal to take a drinking measure under illegal arrest,

[1] Article 4(1)1 of the Act on the Performance of Duties by Police Officers (hereinafter “instant provision”) provides that protective measures against a victim under the influence of alcohol that may cause harm to his/her or another person’s life, body, and property constitutes administrative compulsory, and thus, the requirements for trigger and event should be carefully and strictly interpreted so that such measures can be exercised only to the minimum extent inevitable. Therefore, the term “intoxicated condition” in the instant provision refers to the degree that the victim is under the influence of alcohol so that he/she can lose his/her normal judgment or mental capacity. Considering the specific circumstances, whether the victim is a victim in need of protective measures under the instant provision shall be determined on the basis of the police officer’s average person, but the determination shall not be considerably unreasonable in light of the purpose and purpose of protective measures, and if the victim’s family members, etc. can transfer it to the victim’s family members, barring special circumstances, it is not permitted to protect the

[2] Although the requirements for protective measures under Article 4(1)1 of the Act on the Performance of Duties by Police Officers were not met, the act of a police officer taking a person who is a suspect for the purpose of criminal investigation into the victim under Article 4(1)1 of the Act on the Performance of Duties by Police Officers and taking him/her against his/her will into custody against a police agency shall be deemed an illegal arrest unless there are circumstances suggesting that the act of a police officer satisfies the legitimate requirements such as arrest of a flagrant offender or voluntary

[3] The measurement of alcohol conducted solely on the ground that there is a considerable reason to recognize that a driver was a driving under the influence of alcohol even though there is no need for traffic safety and prevention of danger, it refers to an investigation procedure to collect evidence of a criminal act already conducted under the Road Traffic Act. Since the provisions of the Road Traffic Act cannot serve as the basis for a compulsory disposition for the measurement of alcohol, in order to compel a driver to do so for the purpose of the measurement of alcohol, it shall follow the procedure of the Criminal Procedure Act concerning the compulsory disposition of water level and the compulsory performance without disregarding such procedure constitutes an illegal arrest. In a case where a request for a measurement of alcohol was made under an illegal arrest, the illegal arrest for the demand for a measurement of alcohol level and its demand for measurement of alcohol level are continued to collect evidence of the criminal act of a driving under the influence of alcohol, and it is not appropriate to individually evaluate the legitimacy of a request for a measurement of alcohol level, and even if there is a considerable reason to recognize that a driver was a driving under the influence of alcohol, it cannot be punished for a violation of the Road Traffic Act by forcing the illegal measurement of alcohol level.

[4] In a case where the defendant who is a cargo driver was indicted for violating the Road Traffic Act on the ground that he attempted to flee at the driver's seat again and refused to take a drinking measure twice after he was arrested by the police officer while leaving the police station to stop other vehicles, the case holding that, in light of the situation at the time, it is difficult to deem that the defendant was under the influence of alcohol, but it was difficult to view that the average police officer was in the state of necessity of protective measures under Article 4 (1) 1 (hereinafter "the provision of this case") of the Act on the Performance of Duties by Police Officers, and that if the police officer tried to take protective measures under the provision of this case against the defendant, he would have failed to judge that the defendant was under the influence of alcohol at the time, and that the police officer refused to take a drinking measure under the provision of this case, and that the police officer did not comply with the legal principles as to the police officer's refusal to take a drinking measure against his will, and thus, it cannot be viewed that the defendant's refusal to take a lawful measure against the police officer's intent.

[1] Article 4(1)1 of the Act on the Performance of Duties by Police Officers / [2] Articles 3(2) and 4(1)1 of the Act on the Performance of Duties by Police Officers, Article 212 of the Criminal Procedure Act / [3] Articles 44(2) and 148-2 subparag. 2 (see current Article 148-2(1)2) of the former Road Traffic Act (Amended by Act No. 10790, Jun. 8, 201); Article 199(1) of the Criminal Procedure Act / [4] Articles 44(2) and 148-2 subparag. 2 (see current Article 148-2(1)2) of the former Road Traffic Act; Article 48-2(1)1 of the Act on the Performance of Duties by Police Officers; Article 212 of the Criminal Procedure Act

[1] Supreme Court Decision 2007Do9794 Decided November 13, 2008 (Gong2008Ha, 1713) / [3] Supreme Court Decision 2004Do8404 Decided November 9, 2006 (Gong2006Ha, 2123)

Defendant

Defendant

Attorney at-won et al.

Suwon District Court Decision 2012No2375 decided August 29, 2012

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

1. As to damage to public goods and violation of the Road Traffic Act

Although the Defendant appealed on the damage to public goods and the violation of the Road Traffic Act (unlicensed Operation) by the lower judgment, the Defendant did not state the grounds for appeal in the petition of appeal and did not find any statement of grounds for objection in the appellate brief.

2. The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. As to the violation of the Road Traffic Act (Refusal of measurement) and obstruction of the performance of official duties

Article 4(1)1 of the Act on the Performance of Duties by Police Officers (hereinafter “instant provision”) provides that protective measures against a victim under the influence of alcohol, which might inflict harm on his or another person’s life, body, and property, shall be immediately enforced by the police, so that such measures can be exercised only to the minimum extent inevitable (see, e.g., Supreme Court Decision 2007Do9794, Nov. 13, 2008). Therefore, under the influence of the instant provision, the term “breath” refers to the degree of under the influence of alcohol so that the victim loses his or her normal judgment or mental capacity. Considering the specific circumstances, whether the victim is a victim who needs protective measures under the instant provision, the determination shall be based on the average police officer, but it shall not be considerably unreasonable in light of the purpose and purpose of protective measures, and if the victim’s family members, etc. can transfer the victim to the police agency, barring special circumstances, it shall not be permitted in the police agency to protect the victim.

The measurement of drinking conducted solely on the ground that there is a considerable reason to recognize the driving of a motor vehicle for the purpose of traffic safety and prevention of danger. The provisions of the Road Traffic Act have meaning as an investigation procedure to collect evidence of the criminal act of a motor vehicle driving already conducted. Since the provisions of the Road Traffic Act cannot serve as the basis for the compulsory disposition for the measurement of drinking, compulsory performance without disregarding such procedure constitutes an illegal arrest. In a case where a request for a measurement of drinking is made under an illegal arrest, illegal arrest and its demand for a measurement of drinking is made for the purpose of collecting evidence of the criminal act of a motor vehicle driving, and it is not appropriate to individually evaluate its legitimacy. Thus, even if there is a considerable reason to recognize that a motor vehicle driving has been done under the influence of drinking, it shall not be deemed that there was an illegal request for a measurement of drinking in light of the series of procedures, and thus, it shall not be deemed that a driver has an obligation to comply with such request for measurement of drinking by a police official, and thus, it shall not be deemed that a police officer has an obligation to comply with such request for measurement of drinking.

In addition, the crime of obstruction of performance of official duties stipulated in Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. Here, legitimate performance of official duties refers to not only the abstract authority of the public official, but also the legal requirements and methods concerning specific performance of official duties. Thus, even if the act of assault or intimidation against the public official performing the act of lack of legitimacy is committed, it shall not be subject to the crime of obstruction of performance of official duties (see, e.g., Supreme Court Decisions 2004Do4731, Oct. 28, 2005; 2008Do926, Feb. 12, 2009).

As to the violation of the Road Traffic Act and obstruction of performance of official duties among the facts charged in the instant case, the lower court acknowledged the following circumstances acknowledged by comprehensively taking account of the adopted evidence and the evidence, i.e., (i) police officers, including Nonindicted 1, under the influence of alcohol, who controlled the drinking control by the police officers, were under the influence of alcohol to control the defects of the Defendant’s head and go to the road while under the influence of alcohol, and went to the enclosed zone. (ii) The Defendant attempted to injure himself while under the influence of alcohol, and even after having arrived at the enclosed zone, the Defendant attempted to do harm to the police officers, and was under the influence of alcohol, and was under the influence of the police officers. (iii) On the following day of the instant investigation, the lower court acknowledged that the act of the police officers of the instant case interfered with the execution of their duties to prevent arrest and harm to the Defendant, and that the act of the police officers of the instant case constitutes an emergency measure to protect the life and body of others, and that there is considerable reason to believe that the act of the police officers was in compliance with the instant measure.

However, we cannot accept the judgment of the court below for the following reasons.

In light of the following circumstances acknowledged by the lower court, (i) the Defendant had no choice but to take measures to stop drinking, and (ii) the Defendant had no choice but to take necessary protective measures against the Defendant at the time of the illegal arrest of the police station, and (iii) the Defendant had no choice but to take necessary measures to stop driving on other vehicles at the scene of control, and (iv) the Defendant had no choice but to stop driving on his own while driving the vehicle, and to stop driving the vehicle and to stop driving the vehicle. As such, it is difficult to view that the Defendant had no choice but to take necessary protective measures to stop driving on the part of the police station, such as the Defendant’s order to stop driving on the part of the Defendant, and to view that the Defendant had no choice but to stop driving on the part of the police station, and thus, the Defendant had no choice but to view that the Defendant had no choice but to take necessary measures to stop driving on the part of the police station, which was found to have been under the influence of the police officer’s normal judgment or capacity.

Nevertheless, the lower court determined otherwise, that the act of Nonindicted 1, etc. by police officers, etc. taking the Defendant into the enclosed zone was lawful as a protective measure under the instant provision, and found the Defendant guilty of violating the Road Traffic Act (Refusal of measurement) and obstruction of performance of official duties among the facts charged in the instant case. In so doing, the lower court erred by misapprehending the legal doctrine on protective measures under the instant provision, thereby adversely affecting the conclusion of the judgment by misapprehending the judgment on the crime of violation of the Road Traffic Act (Refusal of measurement) in an unlawful arrest state and the establishment of obstruction of performance of official duties. The allegation in the grounds of appeal assigning

B. As to the injury

In order to establish self-defense under Article 21 of the Criminal Act, the act of defense must be socially reasonable, taking into account all specific circumstances, such as the type, degree, and method of infringement of the legal interest infringed by the act of infringement, the complete completion of the act of infringement, and the type and degree of the legal interest to be infringed by the act of defense (see Supreme Court Decision 2009Do11041, Jan. 14, 201, etc.).

According to the reasoning of the lower judgment and the evidence admitted by the lower court, the Defendant, on the same day as the circumstances acknowledged by the lower court, was demanded by Nonindicted 2, a police officer, to take a drinking test in a manner that does not put the breath to a drinking measuring instrument at around 23:38 on the same day, but refused the first measurement, and the Defendant again refused to take a second measurement at the same place around 23:49 on the same day, along with the statement that “the Defendant would be at a disadvantage if he refuses to take a breath and to take a drinking test.” In response to Nonindicted 2’s refusal to take a second measurement, Nonindicted 2, including Nonindicted 2, and police officers, who did not exercise the Defendant’s real force. In the process of demanding a drinking test, the lower court revealed the following.

Examining the above facts in light of the legal principles as seen earlier, even if the Defendant was illegally arrested, and Nonindicted 2’s act of demanding a drinking test was unlawful, Nonindicted 2 merely demanded a drinking test to the Defendant, and the police officers, including Nonindicted 2, did not exercise the power, etc., and Nonindicted 2 prevented the Defendant’s attempt to escape from the illegal arrest. However, as long as the Defendant inflicted an injury on Nonindicted 2 by taking the vessel of Nonindicted 2, it is difficult to view that the Defendant’s act constituted a considerable defense in society, and thus, it cannot be deemed that the Defendant’s act constitutes self-defense, and there is no reason to deem that the crime was not established, such as the dismissal of illegality, etc.

Therefore, as seen in the above A., the lower court’s conclusion that the police officer Nonindicted 1, etc. committed the act of taking the Defendant into the salary fenced zone was erroneous that it was lawful as a protective measure under the instant provision, but the lower court’s conclusion that found the Defendant guilty of the above injury is justifiable, and thus, it cannot be deemed that the lower court’s error affected the judgment. The allegation in the grounds of appeal on this part is without merit.

3. Conclusion

Therefore, the judgment of the court below shall be reversed [the part concerning the violation of the Road Traffic Act (Refusal of measurement) and the obstruction of performance of official duties among the judgment of the court below shall be reversed for the reasons mentioned above, and each of the above crimes shall be reversed for the remaining crimes and concurrent crimes under the former part of Article 37 of the Criminal Act, so the judgment of the court below shall be reversed in its entirety], and the case shall be remanded to the court below for a new trial and determination

Justices Lee In-bok (Presiding Justice)