209No4018 Injury, obstruction of performance of official duties, insult

○○○ (730000-10ㅇㅇㅇㅇㅇ), 무직

Dong-dong, Bupyeong-gu, Incheon (hereinafter referred to as "Dong-dong")

Busan Young-gu Cheongdo-dong (hereinafter referred to as "Cheongdo-dong") on the place of registration

Defendant

leapss

A public-service advocate decretion, decretion

Incheon District Court Decision 2009 High Court Decision 2880 Decided November 19, 2009

April 30, 2010

The lower judgment is reversed. The Defendant is not guilty.

1. Summary of the facts charged in this case

(a) Injury and obstruction of performance of official duties;

On February 15, 2009, at around 01:20, the Defendant was demanded to present identification card to the police officer belonging to the Incheon Bupyeong Police Station Police Station that was conducting an inspection at the above location after drinking alcohol on the front of the Yeung-dong, Bupyeong-gu, Incheon, Bupyeong-gu, Busan, and riding a bicycle, and boarding and drinking the bicycle at the above location. The Defendant was demanded to present identification card at the same time, stating that “The Defendant was committing a frighting crime by using a bicycle at the neighboring police station, and this request to cooperate with the inspection.” At the same time, the Defendant did not conduct a ordinary inspection in the process, and the fright was inspected against the Defendant by the fright to check the Defendant, saying, “I will check the frighting from the Army, the age of the frighting fright to check it.” At the same time, the Defendant committed assault to the Defendant beyond the fright-dong floor, thereby obstructing the police officer’s suppression of the crime and obstructing the police officer’s performance of his duties.

(b) Definating;

The Defendant, at the above date and at the same place, shall be subject to the same jurisdiction when he is making chip with the chip

경위 , 경사 □□□가 피고인을 제지하며 “경찰관에게 이러시면 안 됩니다. 경찰관이 검문하는 거니까 이해하고 협조해주세요."라고 말한 것에 화가 나 함께 검문을 하고 있는 경찰관 3명이 있는 자리에서 피해자 에게 “넌 또 뭐야. 힘없는 놈들 이. 니가 짱이냐. 내가 누군지 알아? 씨팔놈들이 짜증나네."라고 욕설하고, 피해자 □□□에게 “이 씨팔놈아, 개새끼야.”라고 욕설을 하는 등 공연히 피해자들을 각각 모욕하였다.

2. The judgment of the court below

The court below found the defendant guilty of this part of the facts charged by taking into account the following evidences.

3. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

The Defendant did not commit the same injury as the facts charged against the police officers. Even if the Defendant committed such act, this constitutes legitimate self-defense or legitimate act with respect to the performance of official duties. Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

Even if the defendant's act should be punished, the sentencing of the court below (the fine of three million won) is too unreasonable.

4. Judgment on misconception of facts or misapprehension of legal principles

(a) Facts of recognition;

According to the evidence duly adopted and examined by the court below, the defendant's partial statement in the court room, and the witness's legal statement in the court room, the following facts and circumstances are recognized:

1) On February 15, 2009, 100 01:0 1 francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing francing franc.

3) When the Defendant was unable to proceed with a bicycle more than the removal of the chip chip, the Defendant was able to see that he was treated as a criminal, and the two people were scam among them, and the Defendant left the bicycle, and the Defendant was scambling with the 100 scam, and the Defendant was scambling with the Defendant, and scam and the Defendant continued to go through the Defendant’s desire. As such, the Defendant was arrested the Defendant as a flagrant offender in the crime of obstruction of the performance of official duties and insult.

B. As to obstruction of performance of official duties

1) 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, 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 act satisfies the legal requirements and methods concerning specific performance of duties (see, e.g., Supreme Court Decision 2006Do148, Sept. 8, 2006). Therefore, in this case, whether the police officer’s non-examination of the defendant was legitimate or not.

(ii) the requirements and method of exercising the questioning;

Article 3 of the Act on the Performance of Duties by Police Officers may stop and question a person who has a considerable reason to suspect that he has committed or is about to commit a crime, judging from his suspicious behavior and other surrounding circumstances (Article 1). In this case, the police officer, while presenting to the person concerned a certificate indicating his identity, shall indicate his affiliation and name, and explain his purpose and reason, and (Article 4) and the person concerned shall not be bound by the Act on Criminal Procedure unless it is governed by the Act on the Performance of Duties by Police Officers and shall not be compelled to answer against his will (Article 7).

According to the above provision, a person who has considerable grounds to suspect that he/she has committed or is about to commit a crime based on reasonable judgment on suspicious movements or other surrounding circumstances. Mesical operation refers to a situation in which he/she is suspected of having out of ordinary activities in light of natural behavior, attitudes, language, appearance, personal belongings, etc., and other surrounding circumstances refer to physical conditions other than those directly affected by the person, such as time and dangerous things according to weekly authorization at night, and personal situation such as attitude of the person surrounding. To ensure that the other party has committed or is about to commit a crime by taking any such circumstance into consideration, it means that the other party cannot be allowed to voluntarily answer questions of whether he/she is permitted to stop his/her body by making use of the other party's answer to his/her danger, and thus, it means that the other party cannot be permitted to interfere with the other party's body by making it clear whether he/she has forced the other party to stop his/her body or to stop his/her body by making use of the other party's answer.

3) It is recognized whether the crime of obstruction of performance of official duties is established against the defendant or not, at the time of the instant case, that the defendant did not appear salivously until the time when the defendant was salved. However, it is recognized that there was a reasonable possibility that the defendant could be an offender of the above salving, by taking into consideration the point of time, place of inspection, details of inspection and search order, etc., when a salpry incident using bicycles occurred in neighboring areas, and when considering the fact that the above 200s et al. was issued, the suspect of the instant case where the defendant was salved, and the defendant was salved with the suspect of the instant case where the defendant was salved, and at the time of this case,

However, the following circumstances acknowledged as above, namely, ① at the time of the instant case, the Defendant was late at 01:20 times from new walls at the time of the instant case, and the Defendant had a firm intent to refuse inspection because he did not refuse to undergo a bicycle, and ② the police officer also stated that he was aware of the Defendant’s intention at the court. ② the Defendant, despite the police officer’s restraint, even if he did not stop the bicycle, did not stop the bicycle, was 1 to 2 meters prior to the first stop, and 60 meters from the time of the instant bicycle inspection. Then, the Defendant asked the Defendant to stop the front of the Defendant’s bicycle and stop the examination by taking into account the following circumstances: (i) the Defendant’s right-hand, and then, the Defendant’s demand that the Defendant stop using the dedicated device without complying with the demand of the Defendant to stop the Defendant’s oral inspection; and (ii) the Defendant’s refusal to follow the request by taking into account the need to stop the dedicated device, such as the Defendant’s oral inspection.

Then, even though the defendant clearly expressed his intention to refuse to comply with the autopsy, the defendant's act of blocking the front of the judgment and obstructing the defendant from participating in the inspection is forced to answer the exercise of the force beyond a verbal understanding, and the act of demanding a continuous response to the inspection is beyond the limit of the method of questioning the imprisonment under the Act on the Performance of Duties by Police Officers. Therefore, the non-examination of the Do dedicated to the Do dedicated to the above method cannot be regarded as a legitimate execution of duties by the police officer, and even if the defendant committed violence in the course of refusing it, the crime of obstruction of performance of duties is not established. Therefore, the judgment of conviction of this part of the charges is erroneous in the misapprehension of legal principles as to the crime of obstruction of performance of official duties, and the defendant'

C. In a case where an injury was inflicted on a prosecutor or a police officer in the course of resisting the illegal emergency arrest or the arrest of an offender in the act of injury and insult, the illegality constitutes self-defense (see, e.g., Supreme Court Decisions 2006Do148, Sept. 8, 2006; 2006Do2732, Nov. 23, 2006).

In addition to the evidence duly admitted and examined in the above facts, the court below and the court below acknowledged the following facts: (a) as the defendant was found to have carried 00 franchisium and carried out franchisium and franchisium 100 together; and (b) as the defendant made franchisium and franchisium franchisium franchisium franchisium franchisium fransium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium franchisium.

5. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and without examining the above argument of unfair sentencing, it is again decided as follows

The summary of the facts charged of this case is as stated in Paragraph (1) above, but this constitutes a case where there is no proof of facts constituting a crime as stated in Paragraph (4) above, and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325

The presiding judge, judge and deputy judge;

Judges Equitable

Judges Dooon

1) Although the Supreme Court precedents that explicitly declared these legal principles have not been discovered, the language of Article 3 of the Act on the Performance of Duties by Police Officers or the purpose of administrative police

If the request for accompanying under the above provision made by police activities leads to an investigation subject to the Criminal Procedure Act's regulation, the Voluntaryness is strict.

The purport of the Supreme Court Decision 2005Do6810 Decided July 6, 2006, the police officer's resident registration certificate and lawsuit shall be guaranteed to the police officer during his/her non-examination.

If 30 minutes are not allowed to leave the place by way of not returning the goods, it shall in fact be taken in an unlawful detention.

The purpose of the judgment of the Seoul District Court 98Na467 delivered on January 20, 1999 that recognized consolation money to the other party (the above judgment is the Supreme Court).

It can be based on the Supreme Court Decision 99Da13874 delivered on May 14, 199, which became final and conclusive without any justifiable reasons.