Defendant 1 and one other

Defendant 1 and Prosecutor

Filii Kim

Attorney Choi Han-gn et al.

Chuncheon District Court Decision 2005Ra77 Delivered on June 2, 2005

All appeals by Defendant 1 and prosecutor against Defendant 2 are dismissed.

The number of days of confinement in prison prior to the pronouncement of this judgment shall be 85 days including the sentence against Defendant 1 in the original judgment.

1. Summary of grounds for appeal;

A. Defendant 1

The sentence imposed by the court below on Defendant 1 is too unreasonable.

B. Public Prosecutor (Defendant 2)

Although Defendant 2’s escape was established as long as Defendant 2 escaped after lawful emergency arrest, the lower court erred by misapprehending the legal doctrine on voluntary behavior and emergency arrest, thereby finding Defendant 2 not guilty, by misapprehending the legal doctrine on the criminal act and emergency arrest, thereby having acquitted Defendant 2.

2. Determination

A. Determination on Defendant 1’s assertion of unreasonable sentencing

In light of various circumstances, including Defendant 1’s age, character, intelligence and environment, motive, means and consequence of the crime, etc., Defendant 1 was sentenced to a suspended sentence of 2 months on December 4, 2001 for fraud; Defendant 1 was sentenced to a suspended sentence of 2 years on August 21, 2003; and Defendant 1 was sentenced to a suspended sentence of 5 months on August 21, 2003 for the same crime; and Defendant 1 was subject to a suspended sentence of 3 years on February 8, 2004 for the invalidation of the suspended sentence; and the crime was committed again after the parole on February 8, 2004; Defendant 2 was issued a false statement after the arrest of the police; and Defendant 1 was tried to transfer his liability by making a false statement to Defendant 2, who is one’s own relative. In light of various circumstances, the court below’s sentence against Defendant 1 is deemed appropriate.

B. Judgment on the Prosecutor’s misapprehension of the legal principle

(1) Summary of the charges against Defendant 2

On September 4, 2004, Defendant 2 was arrested by Nonindicted 2, etc. who belongs to the above police station around 11:42, the defendant 2 was arrested on September 4, 2004, at the criminal department office of the Yancheon-gun Police Station located in the Yancheon-gun, Seocheon-gun, Seocheon-gun, and from around 00:0 on August 11, 2004 to around 10:00 on August 17, 2004, the victim non-indicted 1, who was located in Seocheon-gu, Seocheon-gu, Seocheon-gu (Seongcheon-do omitted), and the victim non-indicted 1,000 won cashier's checks and KRW 1,80,000 in cash, went out of the above police station of the investigation station around 12:0 on the same day, and went out of the above office of the investigation police station or the above office of the police station after the escape.

(2) The judgment of the court below

On September 4, 2004, the court below found Defendant 2 not guilty on the ground that Defendant 2 did not constitute “a person arrested or detained by law” under Article 145(1) of the Criminal Procedure Act, since it did not meet the requirements or procedures prescribed in the Criminal Procedure Act, even though a voluntary act conducted against Defendant 2 should be deemed as a compulsory act, i.e., an emergency arrest, and thus, it is unlawful.

(3) Judgment of the court below

The crime of escape is established when "a person arrested or detained under the law" runs away, and the person arrested or detained under the law refers to a person who is legally detained on the basis of the law, and whether the defendant 2 falls under this.

Comprehensively taking account of the evidence duly adopted and examined by the court below: ① The Superintendent of the Gyeongcheon Police Station and Nonindicted 4, etc., who used the above check at the end of tracking the stolen cashier’s checks, sought statements from Defendant 1 who used the above check to the effect that Defendant 2, one million won check, etc. was stolen from the victim Nonindicted 1’s house at the victim Nonindicted 1; ② the above Nonindicted 4 and four police officers belonging to the Gyeongcheon Police Station, including the Senior 4 and the Senior 2, were arrested to arrest Defendant 2, from around 00 on September 3, 2004 to the police station around 1, 2000 to the effect that the Defendant was released from the Defendant’s office at the time of the emergency arrest, and the Defendant was released to the police station around 0:0 on September 4, 2004 to the police station around 0: 206 to 07:0 on September 4, 2004.

The so-called "voluntary emergency arrest" means voluntary accompanying of the defendant to the investigative agency under the consent of the defendant, and the decision of voluntariness should be based on objective circumstances, including the time and place of accompanying, the existence of an intention to refuse accompanying, and the existence of an intention to leave the police station after accompanying the defendant. In light of the above facts acknowledged as follows, the time and place of voluntary accompanying the defendant 2 were 06:0, and the method of accompanying the defendant was 10 hours prior to the defendant's whereabouts, and the defendant's oral statement was too insufficient to identify the defendant's whereabouts at the time of arresting the defendant at the time of voluntary arrest, and the defendant's oral arrest was also denied if the defendant's statement was made without any consent of the defendant 2 at the time of voluntary arrest. The defendant's oral arrest did not appear to have been made in the form of a new police officer's oral arrest, and there was no other evidence that the defendant's oral arrest was conducted by the defendant 2 at the time of his voluntary arrest.

Furthermore, Defendant 2’s voluntary act and investigation by the police station on September 4, 2004. 11: 11:42 of the Act on the Performance of Duties by Police Officers cannot be deemed lawful if the emergency arrest was conducted at the expense of Defendant 2, and the voluntary act against Defendant 2 was conducted after 6 hours passed thereafter, and the procedure for the emergency arrest was conducted at the expense of Defendant 2 by notifying the gist of the crime, the reason for the emergency arrest and the right to appoint counsel, etc. of the emergency arrest to be followed at the latest at the time of the arrest, and the degree of illegality of such voluntary arrest goes beyond the minimum procedural defects and such illegality is also succeeded to the emergency arrest conducted at the police station. Moreover, if the emergency arrest procedure was not conducted at the expense of Defendant 2, it is difficult to view that the suspect was lawfully arrested at the time of the investigation by the court on the condition that the emergency arrest was conducted at the expense of 20 years or more, it is difficult to view that there was no time to obtain the warrant of arrest by the judge of the district court.

Thus, Defendant 2 cannot be deemed to be a person illegally arrested and detained under the law, and thus, Defendant 2 cannot be the subject of the crime of escape on the ground that he was not a “person arrested or detained by law” under Article 145(1) of the Criminal Act. In the process of fact-finding and judgment of the court below, there was no error in the process of finding and determining the facts of the court below.

3. Conclusion

Therefore, since the appeal by Defendant 1 and the appeal by the prosecutor against Defendant 2 are without merit, all of them are dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and by applying Article 57 of the Criminal Act, the number of days of confinement before the pronouncement of this judgment shall be 85 days from the date of the original judgment against Defendant 1, and it is so decided as per Disposition.

Judges Haak-gu et al. (Presiding Judge)