Defendant

Both parties

Maximum Council (Public Prosecution) and Second Class (Public Trial)

Attorney Choi Han-chul (Korean National Assembly)

Busan District Court Decision 2016Gohap3047 Decided August 25, 2016

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

The judgment of the court below which found the Defendant guilty of the facts charged in this case is erroneous in the misapprehension of legal principles, even though the police officer's single electric power measure to get the Defendant out of the house lacks legality, and the Defendant merely resisted the police officer who performs duties lacking legality.

B. Unreasonable sentencing

The defendant asserts that the punishment of the judgment of the court below (a prison labor for eight months, confiscation) is too unfford and the prosecutor is too unfford and unfair.

2. Summary of the facts charged in this case

The defendant is a person who has reported 112 on several occasions by his or her neighbors due to his or her severe high desire, humiliation, scopic music, etc. in his or her usual house.

On June 8, 2016, at around 23:40, the Defendant received a report that Nonindicted Party 1 and Nonindicted Party 2 were satisfing in the Busanjin-gu ( Address omitted) and the office of the Defendant at ○○○○○○○○○△△△△, who was called upon 112 to report that Nonindicted Party 1 and Nonindicted Party 2 were satisfing in the Busan Jin-gu Police Station, called a door-to-face. However, the Defendant was able to call up a door, but the police officer called “Is, satch, satch, satf, sat, satch, and satched,” who was a dangerous object for the Defendant to satch the electric breaker to sat down ( approximately 37 cm in total, about 24 cm in length, and approximately 24 cm in length, and died of the said police officer.”

Accordingly, the Defendant, a police officer, interfered with the legitimate execution of duties concerning the handling of Nonindicted 1 and Nonindicted 2’s reporting duties.

3. Judgment of the court below

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 is legitimate. Here, the term "reasonable performance of official duties" refers to not only the abstract authority of a public official, but also the case where the act satisfies the legal requirements and methods for a specific performance of official duties. Thus, the crime of obstruction of performance of official duties is not established on the ground that the act of assault or intimidation against a public official performing an act of lacking legitimacy is committed (see Supreme Court Decision 2008Do8214, Dec. 11, 2008, etc.). Meanwhile, the crime of obstruction of performance of official duties is premised on a legitimate performance of official duties by a public official. Whether a certain performance of official duties by a public official belonging to abstract authority is legitimate is determined based on the specific situation at the time of the act, and it is not determined in a pure objective criteria after the fact (see Supreme Court Decision 2011Do4763, Aug. 23, 2013).

In addition, Article 6(1) of the Act on the Performance of Duties by Police Officers provides that “If a police officer deems that a crime is about to be committed in front of the police officer, the police officer may issue an alert to the person concerned to prevent the crime, and if it is urgently required due to such act to inflict harm on human life and body, or to inflict serious damage on property, the police officer may restrain the act.” The provision on the restraint of a police officer requires the immediate administrative enforcement of the police officer for the prevention of the crime, i.e., removal of an imminent danger in front of the police, and it is difficult to order the police officer to do so without any time or to order his/her duty to do so in a situation where it is difficult for the police officer to achieve the purpose, without any premise of non-performance, to realize the necessary condition of the police officer by exercising his/her own force and by exercising his/her own force within an exceptional limit to achieve its inherent purpose. Thus, the police officer’s actions under the above provision can only be objectively interpreted and applied within the scope of the police officer’s fundamental rights and application of the Constitution.

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, it is difficult to view that the instant facts charged was proven without reasonable doubt. Therefore, the Defendant’s assertion of mistake of facts and misapprehension of legal doctrine is with merit.

① According to Article 3(1), Articles 4(1), 5(1), 6(1), and 7(1) of the Act on the Performance of Duties by Police Officers, the public prosecutor uses the applicable Acts and subordinate statutes concerning the performance of duties by damaged police officers as stipulated under Article 3(1), 4(1), 5(1), and 6(1) of the Act on the Performance of Duties by Police Officers. In the instant case where the Defendant is not a person in need of relief and does not ask questions, it is not applicable to Articles 3(1) and 4(1) of the Act on the Performance of Duties by Police Officers, but the Defendant’s act is merely a cause of noise, and the damaged police officers appear to have taken measures against the Defendant without prior notice to the point that it would cause harm to people’s life or body, or that there is no risk of harm to people’s property or that there is no risk of harm to people’s life or body under Article 6(1) of the Act on the Performance of Duties by Police Officers.

② In light of the purport of Article 144(1) of the Criminal Act, where a dangerous object was carried with himself and committed an obstruction of the performance of official duties, the term “Carrying a dangerous object” as referred to in the pertinent provision refers to a case where a person carries a dangerous object or carries his body under “the intention to use” at the scene of the crime, and it does not include the case where a person carries a dangerous object or carries it with his body, regardless of the crime at all, and the defendant stated that he opened an entrance and opened the door by blocking electricity. The Defendant’s act of putting the door out of the entrance and opened the door seems to have been easily used by the police officer while protesting against the measures taken by the police officer. In light of the fact that the Defendant’s face, knife, knife, and the direction of the knife, cannot be identified, it is difficult to readily conclude that the Defendant’s statement, a police officer, who suffered damage, was in danger of Nonindicted 1’s face.

③ 한편 피고인은 검찰에서 “불을 키고 가라고 했는데 불을 안 켜서 침대에 앉아 있다가 제가 전원을 켜러 나갔습니다. 제가 칼을 들고 나갔습니다. 그것은 저의 방어를 위한 것이었습니다. 제가 불을 켜러 갈 때 그 사람들이 덤빌 수 있기 때문에 칼을 들고 나갔습니다. 그런데 그 때 경찰이 전자총으로 저를 쐈습니다”라고 진술하였고, 피해 경찰관인 공소외 1은 피고인이 약 20초 동안 인터폰으로 쌍욕을 한 후 출입문을 열고 식칼을 들고 자신과 공소외 2 경찰관을 찌를 듯이 약 10분 정도 위협하였고 이후 공소외 3 경찰관이 전기 차단 스위치를 켜기 위해서 출입문을 나오는 피고인을 보고 테이져건을 발사하였다고 진술하였는바, 피해 경찰관의 진술에 의하더라도 피고인이 테이져건 발사 당시에는 피해 경찰관들에게 칼을 휘두르지 않았던 것으로 보인다.

④ Nonindicted 1, a victimized police officer, made the following statements. Unlike the facts charged in the instant case, Nonindicted 1’s major contents are as follows: (a) the victimized police officer obstructed electric power at the Defendant’s house.

(Investigation Records 22 pages) During the night duty, he was engaged in the patrol duty No. 112 Before the due date. During the 112 patrol duty, he was reported and 23:31 at around 23:31, 112, he got a report that “I am on the ○○○○○○○○○○○○○○○○○,” which was located on the 1112 patrol, “I am on the 112 patrols that music sound and the Defendant’s Defendant’s identity cannot be identified to the extent that I am on the △△△△△△△△ in the 112 patrol duty, and B am on the 113:31, he am on the 112 patrol

(24 pages of investigation records) If you want to stop the electricity of the accused before the accused reaches the bar and to interview the accused, I do not hold this way.

4. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following decision shall be rendered

The summary of the facts charged in this case is as stated in Paragraph (2). This constitutes a case where there is no proof of facts constituting a crime as seen in Paragraph (3) and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, but the defendant does not consent to a public notice of the judgment of innocence, and thus the summary of the judgment of innocence

Judges Park Jong-dae (Presiding Judge)