beta
Text
Defendant
All appeals by prosecutors are dismissed.
Reasons
1. Summary of grounds for appeal;
A. The Defendant did not interfere with the performance of official duties by rootsing the arms he was catched by G while taking a bath against police officers G, and by pushing the chest.
In addition, since police officers did not properly notify the defendant of the non-competence principle in the course of arresting the defendant, even if the exercise of the defendant's tangible power was somewhat occurred in the course of arrest, it cannot be viewed as obstruction of performance of official duties.
Nevertheless, the judgment of the court below which convicted him of the obstruction of the performance of official duties among the facts charged of this case is erroneous in the misapprehension of legal principles or misconception of facts affecting the judgment.
B. The Prosecutor’s sentence of a fine of KRW 4 million sentenced by the lower court against the Defendant is too uneased and unreasonable.
2. Determination
A. (1) The first sentence of Article 12(5) of the Constitution of the Republic of Korea declares the principle that “no person shall be arrested or detained unless he has been notified of the grounds for arrest or detention and of the right to assistance of counsel.” Article 72 of the Criminal Procedure Act provides that “the accused may appoint a defense counsel, and shall not be detained unless he/she has given an opportunity to defend himself/herself.” This provision applies mutatis mutandis to cases where a prosecutor or a judicial police officer arrests a flagrant offender or delivers a flagrant offender to the general public pursuant to Article 213-2 of the same Act. As such, it is evident that the first sentence of Article 12(5) of the Constitution of the Republic of Korea provides that “no person shall be arrested or detained unless he/she has been notified of the grounds for arrest or detention and the right to receive assistance of counsel.”
(See Supreme Court Decision 9Do4341 delivered on July 4, 2000). Evidence duly adopted and examined by the court below.