Where a suspect confined in the security room of the police station without a warrant of detention intends to leave from the security room, and the police officer who restrains the use of the police officer commits the crime of obstruction of performance of official duties.

If security measures under the Act on the Performance of Duties by Police Officers or urgent detention under the Criminal Procedure Act are not applicable, attracting a suspect to a security room without being issued a detention warrant is illegal confinement against the warrant requirement, and thus, it cannot be deemed legitimate execution of official duties. Thus, it does not constitute the crime of obstruction of performance of official duties even if the police officer committed assault against a security room, which cannot be viewed as legitimate execution of official duties, and attempts to escape from a security room.

Article 136 of the Criminal Act

[Plaintiff-Appellee] 85Mo16 dated July 29, 1985 (Law No. 33 ② 609Gong1985, 1225)

Defendant

Defendant

Seoul Criminal District Court Decision 91Na9868 delivered on May 21, 1992

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 1,500,000.

When the above fine is not paid, the defendant shall be confined in a workhouse for the period calculated by converting 10,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The summary of the grounds for appeal by the defendant is as follows: first, the defendant, who is the police officer of the lapped lapped lapped lapped lapped lapped lapped lapped lapped lapped lapped lapped lapped lapped lapped lapped 1. Thus, the act of the non-indicted 1, who tried to force the defendant without any legal basis, cannot be deemed as a lawful performance of official duties, and thus, the act of the defendant who committed violence against this cannot be deemed as a crime of obstruction of performance of official duties; however, the court below found the defendant guilty that he committed an unlawful act affecting the conclusion of the judgment; second, considering the circumstances such as the fact that the defendant committed a crime in the judgment

Therefore, even if examining the text of the facts charged in this case, the defendant merely appears to have been prosecuted for violating the Punishment of Violences, etc. Act with respect to the act of assaulting against the non-indicted 1, and also the judgment of the court below merely decided that the above act was a violation of the Punishment of Violences, etc. Act with respect to the above act (the judgment of the court below clearly divided the part against the non-indicted 1 and the part against the non-indicted 2 and the non-indicted 3 and applied only the Punishment of Violences, etc. Act with respect to the former differently from the latter; the part against the non-indicted 1 and the part against the non-indicted 2 and the non-indicted 3 of the judgment of the court below is applied to the crime of obstruction of performance of official duties

However, according to the reasoning of the judgment of the court on the remaining grounds of appeal, if the defendant was unable to take an urgent measure to protect the defendant's body at the time of the above-mentioned confinement room or to protect the defendant's body, it cannot be viewed that the defendant's act was in violation of the Act on the Performance of Duties by Police Officers, and thus, it cannot be viewed that the defendant's act was in violation of the Act on the Performance of Duties by Police Officers to protect the defendant's body or to protect the defendant's body at the time of the above-mentioned confinement room (see, e.g., Supreme Court Decision 200Da144777, Apr. 1, 200). The court below's ruling that the defendant's act was in violation of the Act on the Performance of Duties by the Police Officers Act, and thus, it cannot be viewed that the defendant's act was in violation of the Act on the Protection of the defendant's own body and thus, it cannot be viewed that the defendant's act would interfere with the execution of duties, as stated in its reasoning.

In contrast, there is no evidence to deem otherwise that the Defendant’s assault interfered with the performance of any other duties by Nonindicted 2 or Nonindicted 3’s policeman.

Thus, although the above part of the facts charged should be deemed to fall under a case where there is no proof of crime, the judgment of the court below which found the defendant guilty shall be deemed to have committed an unlawful act that affected the remaining judgment by misunderstanding the facts against the rules of evidence or misunderstanding the legal principles as to the obstruction of performance of official duties. In this regard, the judgment of the

Therefore, without examining the remaining grounds for appeal, the court below's judgment is reversed ex officio pursuant to Article 364 (2) of the Criminal Procedure Act without examining the remaining grounds for appeal, and it is again decided as follows.

The summary of the facts charged by the principal and the evidence thereof are as follows: (a) changes from the original trial to the "injury" of Part 2, Part 11, Part 11 of the judgment of the court in the original trial to the "injury............................."

1. Article applicable to criminal facts;

Article 2(2) and (1) of the Punishment of Violences, etc. Act; Articles 257(1) and 260(1) of the Criminal Act; Article 4(1) of the Act on Provisional Measures such as Fines

2. Aggravation for concurrent crimes;

Article 37 (Aggravation of Punishment and Punishment provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Punishment and Punishment)

3. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

4. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The summary of the obstruction of performance of official duties among the facts charged in the instant case is that the Defendant interfered with the performance of official duties of the police officer Nonindicted 2 in the victim Nonindicted 3, who was a criminal police officer, who was discharged from the atmosphere from the protection room of the Gangnam Police Station around December 7, 1991, by drinking and drinking away several times from the face of Nonindicted 2, who was a criminal police officer, who was in charge of keeping him/her out of the atmosphere, and again told him/her again, on two occasions from the back of the second step. As such, this constitutes a case where there is no proof of criminal facts as stated in the reasoning of the above reversal, and thus, the Defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but since it is recognized as guilty of the violation of the Punishment of Violences, etc. Act, which is related to the ordinary concurrent crimes, the sentence shall not be pronounced separately.

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

Judges Gangnam-gu (Presiding Judge)