[1] Cases where an emergency arrest is illegal arrest because it fails to meet the requirements of emergency arrest

[2] The meaning of "public official duties" in the crime of obstruction of performance of official duties, and whether the crime of obstruction of official duties is established in a case where a person who voluntarily attended an investigation agency fails to meet the requirements of emergency arrest, but attempts to arrest him by force, and an assault is committed against a public prosecutor or judicial police officer (

[3] The case holding that it constitutes self-defense where the public prosecutor's voluntary appearance at the public prosecutor's office with knowledge that the public prosecutor was under investigation of witness and the emergency arrest was conducted without reasonable grounds, thereby causing injury to the above public prosecutor in the process of suppressing the emergency arrest

[1] Emergency arrest is exceptionally permitted only when the requirements of Article 200-3 (1) of the Criminal Procedure Act are met, as it is an exception to the principle of warrant requirement. Emergency arrest which fails to meet the requirements constitutes illegal arrest as non-legal grounds. Here, whether it satisfies the requirements of emergency arrest is not based on the circumstance revealed ex post facto, but on the basis of the situation at the time of arrest. It is not based on the situation at the time of emergency arrest, but on the basis of the situation at the time of arrest such as prosecutor or senior judicial police officer. However, in cases where a prosecutor or senior judicial police officer's judgment on whether it satisfies the requirements is considerably unreasonable in light of the empirical rule even when it is considered the situation at the time of emergency arrest, such arrest is illegal arrest.

[2] The crime of obstruction of performance of official duties under Article 136 of the Criminal Code is established only when the execution of official duties by a public official is legitimate. The legitimate performance of official duties here refers to not only the abstract authority of a public official, but also the case meeting the legal requirements and methods for specific performance of duties. Thus, if a public prosecutor or a judicial police officer intends to arrest a person who voluntarily present at an investigation agency by force despite the failure to meet the requirements for emergency arrest, it cannot be deemed a legitimate performance of official duties, and it does not constitute the crime of obstruction of performance of official duties on the ground that a person voluntarily present at a public prosecutor or a judicial

[3] The case holding that it constitutes self-defense where the prosecutor's voluntary appearance at the prosecutor's office with knowledge that he is subject to the investigation of a witness and the emergency arrest was conducted without reasonable grounds, causing injury to the above prosecutor in the process of suppressing the emergency arrest

[1] Article 200-3 (1) of the Criminal Procedure Act / [2] Article 136 of the Criminal Act, Article 200-3 (1) of the Criminal Procedure Act / [3] Articles 21 and 136 of the Criminal Act, Article 200-3 (1) of the Criminal Procedure Act

[1] Supreme Court Decision 200Do5701 Decided June 11, 2002 (Gong2002Ha, 1720) Supreme Court Decision 2002Mo81 Decided March 27, 2003 (Gong2003Sang, 1117) Supreme Court Decision 2005Do7569 Decided December 9, 2005 / [2] Supreme Court Decision 94Do2283 Decided October 25, 1994 (Gong194Ha, 3167), Supreme Court Decision 99Do4341 Decided July 4, 200 (Gong200Ha, 1851)

Defendant 1 and one other

Defendant 1 and Prosecutor

Incheon District Court Decision 2005No1392 Decided December 15, 2005

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Incheon District Court Panel Division. The Prosecutor’s appeal is dismissed.

1. Judgment on Defendant 1’s grounds of appeal

A. As to the obstruction of performance of official duties

As an exception to the principle of warrant requirement, an emergency arrest is exceptionally permitted only when all the requirements of Article 200-3 (1) of the Criminal Procedure Act are met. An emergency arrest without legal basis constitutes illegal arrest. Here, whether the requirements of emergency arrest are met or not should be determined based on the situation at the time of arrest rather than on the circumstances revealed ex post facto, and the judgment of the investigative body, such as a prosecutor or a senior judicial police officer, etc. is based on the situation at the time of the emergency arrest. However, in cases where the judgment of a prosecutor or a senior judicial police officer on whether the requirements are met is considerably unreasonable in light of empirical rule in light of the situation at the time of emergency arrest, such arrest is illegal arrest (see Supreme Court Decision 200Do5701, Jun. 11, 2002).

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 where the act belongs to the abstract authority of a public official, but also where the legal requirements and methods concerning specific performance of duties are met. Thus, if a public prosecutor or a judicial police officer intends to voluntarily arrest a person who voluntarily attended an investigation agency by force despite the failure to meet the requirements for emergency arrest, it cannot be deemed legitimate performance of official duties. The crime of obstruction of performance of official duties is not established on the ground that a person who voluntarily attended voluntarily committed violence against a public prosecutor or a judicial police officer by means of refusal (see Supreme Court Decisions 94Do2283, Oct. 25, 1994; 9Do4341, Jul. 4, 200).

According to the records, on November 25, 2002, at the Incheon District Court Branch Support (Case No. 1 omitted), Nonindicted Party 1 was acquitted of charges of perjury and use of forged evidence. Nonindicted Party 1, who was at the time of the public trial, appealed against this and then asked Defendant 2, who was in charge of the attorney-at-law's office, to appear in the prosecutor's office No. 408, Incheon District Public Prosecutor's Office No. 408, and Nonindicted Party 1 did not appear in the prosecutor's office on January 3, 2003. In relation to the above case of Defendant 1's accusation, "I think it was known that Nonindicted Party 2 would have known that he would testify at the time of preparing the interrogation of the witness to Nonindicted Party 2," and the prosecutor did not immediately request the prosecutor to voluntarily appear in the interrogation of the suspect's suspect's interrogation report to the effect that "I would not have been summoned for the above defendant 2's testimony and testimony without his consent."

According to the above circumstances, since Defendant 2 voluntarily attended the Public Prosecutor's Office with the knowledge of being examined by the witness, and it was anticipated that he was investigated as a suspect, unlike the anticipated, Defendant 2's refusal of voluntary investigation cooperation and demanded home before initiating the investigation. Thus, it cannot be deemed that there was a considerable reason to suspect that Defendant 2 committed the crime of perjury and perjury at the time of emergency arrest against Defendant 2 by the public prosecutor (the above non-indicted 3's statement was rejected in the above Incheon District Court's fathercheon Branch Branch (the case number omitted) decision, and it cannot be deemed that there was a considerable reason to suspect that Defendant 2 committed the crime of perjury and perjury merely with the above non-indicted 3's statement, it cannot be deemed that there was a reasonable ground to suspect that Defendant 2 had committed the crime of perjury and perjury, Defendant 2's occupation and degree of suspicion, Defendant 1's acquittal of the above crime of perjury, Defendant 1's previous testimony of Defendant 2 before leaving the Public Prosecutor's office or the prosecutor's office's office's ex officio's ex officio.

Nevertheless, the court below rejected Defendant 1’s assertion and found Defendant 2 guilty of this part of the crime on the ground that the prosecutor attempted to arrest Defendant 2 constituted lawful performance of official duties, since it is difficult to view that there was an objective and reasonable ground for finding the emergency arrest of Defendant 2, even though it did not exist with respect to the emergency arrest of Defendant 2, the court below did not err in matters of law regarding the requirements of emergency arrest, or in matters of law regarding the legality of the execution of official duties, by misunderstanding the legal principles on the requirements of emergency arrest, or misunderstanding it. It is obvious that this affected the conclusion of the judgment

B. As to the injury

(1) Examining the admitted evidence of the court below in light of the records, the fact-finding and judgment of the court below that recognized the fact that the prosecutor suffered injury due to the act as seen above by the defendant 1 is just, and it cannot be deemed that there was an error of finding the facts in violation of the rules of evidence as alleged in the grounds of appeal

(2) However, as seen earlier, the prosecutor’s act of Nonindicted Party 1 was intended to illegally arrest Defendant 2 beyond the lawful performance of official duties. Thus, it is reasonable to view that Defendant 1’s act of causing injury to the above prosecutor in the process of suppressing Defendant 2’s arrest against Defendant 2 constitutes a self-defense as an act to escape from the current illegal infringement on the body due to such illegal arrest and constitutes legitimate self-defense (see, e.g., Supreme Court Decisions 9Do4341, Jul. 4, 200; 2001Do300, May 10, 2002).

Nevertheless, the court below rejected Defendant 1’s assertion of self-defense and found Defendant 1 guilty of this part of the crime on the ground that the act of Nonindicted Party 1’s emergency arrest by Defendant 2 constitutes legitimate performance of official duties. The court below erred by misapprehending the legal principles on the requirements of self-defense. It is obvious that this affected the conclusion of the judgment.

2. Judgment on the grounds of appeal by the prosecutor

Examining the judgment of the court of first instance and the records maintained by the court of first instance, it is acceptable to maintain the judgment of the court of first instance which acquitted Defendant 2 on the grounds that there is no proof of each of the facts charged in this case, and there is no violation of the rules of evidence as alleged in the grounds of appeal.

3. Conclusion

Therefore, the part of the judgment below against Defendant 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)