B. Performance of official duties

2.2.B

Attorney D (Korean National Assembly for Defendant B)

The summary of the judgment of innocence against the Defendants is published.

Defendant A is the chairman of Jeju-do branch of the Association of Jeju-do, and Defendant B is the person who was elected as the chairman of the Association of Jeju-do on April 11, 201 as the chairman of the Association of Jeju-do, and was in the special election for Do council members in Jeju-do on April 11, 201. The Defendants, around 10:00 on October 25, 201, attended the 'F Jeju-do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do ,' which was held by the Association of Jeju-do Do Do and the Association of Jeju-do Do Do Do Do Do Do Do Do Do Do , and tried to install a Do Do Do Do Do

Accordingly, the public officials belonging to the Jeju Viewing Construction and Transportation Bureau started to put up physical fightings with public officials in order to prevent them from doing so on the ground that there is a danger to pedestrian safety if the public officials belonging to the Jeju Viewing Construction and Transportation Bureau installed a tent, and there is an obstacle to traffic flow.

A. On October 25, 201, Defendant A’s special injury resulting from the obstruction of the performance of official duties caused by Defendant A’s performance of official duties by using a tent pipe (2 meters in length) for the installation of a tent, which is a dangerous object in India, around October 10:37, 201, at the Jeju Special Self-Governing Province Administration, on both hand and several occasions to the public officials who remove the tent installed illegally on the above road, and J, who are public officials belonging to the Jeju Metropolitan City Construction and Transportation Bureau, who were subsequent to the Defendant, suffered approximately 3 cent of the upper part of the left part of the pipe.

As a result, Defendant A assaulted public officials who carry dangerous objects and remove a tent, thereby hindering J and Jeju audience officials from performing their legitimate duties, and the J suffered from an unexplosion of treatment days.

B. Performance of Official Duties by Defendant B

At around 10:35 on October 25, 201, Defendant B, at the same place as above, led Defendant B to her hand by her hand from the weapons contract L belonging to Jeju Viewing K, which had been engaged in the removal of an illegally installed tent, and then, Defendant B assaulted Defendant B by her hand with her blaps. As a result, Defendant B assaulted a public official who was engaged in the removal of a tent and interfered with his legitimate execution of duties.

2. Determination

A. 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, "legal performance of official duties" refers to not only where the act belongs to the abstract authority of the public official, but also where the act satisfies the legal requirements and methods concerning the specific performance of official duties. Thus, even if the act of assault or intimidation against the public official performing the act of lacking such legitimacy, it cannot be viewed as the crime of obstruction of performance of official duties (see, e.g., Supreme Court Decision 2004Do4731, Oct. 28, 2005).

B. In order to establish the crime of obstruction of performance of official duties against the Defendants, it should be recognized that the Defendants satisfied all the legal basis, requirements, and procedures for the execution of official duties of removal of the instant tent removal.

First of all, it is deemed that the execution of removal of this case was completed in accordance with Article 63 of the Road Act (as a result of investigation records, the management agency immediately forced or vicariously executed the removal of this case) and whether the removal was executed lawfully in accordance with the above provision.

Administrative compulsory performance refers to an act of fact-finding that realizes administrative conditions by exercising the real force of an individual’s body or property in a case where it is difficult to achieve its purpose, even though it is necessary to bring an imminent administrative obstacle in front of the snow, or by issuing an order for an obligation. Such administrative compulsory performance is not a premise for the existence of specific obligations by statutes or by an order issued by an administrative agency or for the nonperformance of such obligations, and thus is contrary to predictability and legal stability, and is likely to infringe on the fundamental rights of the people in the process. Thus, in order for an administrative agency to immediately exercise its authority, it requires strict basis under the positive law and is not permissible if there is no such basis under the positive law (see Constitutional Court Order 200Hun-Ga12, Oct. 31, 200).

According to Article 63 (2) of the Road Act, "Road Managers may order the suspension of works by a person who violates Article 43 of the Road Act, or the reconstruction, relocation, or removal of structures or other things, or take necessary measures to prevent any danger and injury that may be caused by such structures or things." However, for the efficient and safe management of roads, the above provisions only grant the road managers the authority to order necessary measures, such as relocation, removal, etc. of illegal structures under the Road Act. Thus, in accordance with the above provisions, the road managers shall not be deemed to have the authority to remove structures immediately, in addition to ordering the person who violated the above provisions to take necessary measures, and even if they fail to perform the obligation under the above order, the road managers shall not be granted the authority to execute vicarious execution immediately pursuant to the above provisions.

Therefore, in the event of the execution of the removal of the instant tent pursuant to Article 63 of the Road Act, it does not meet the legal requirements and methods concerning the performance of duties, and thus, it is deemed to lack legality (in addition, there is no evidence that the Gu or the victims were legally appointed as the road manager or present certificates under Article 63(1) of the Road Act as public officials belonging to the Jeju metropolitan viewing who are the management agency pursuant to Article 63(1) of the Road Act. Next, in the event that the removal execution is deemed to have been conducted pursuant to Article 65 of the Road Act (the prosecutor’s written opinion submitted in this Act) and whether the performance of duties satisfies the legal requirements and methods.

According to Article 65 (1) of the Road Act, "the road management agency may take necessary measures, such as removal of things placed on the road, in cases where it is difficult to achieve the purpose thereof through the procedures provided for in Article 3 (1) and (2) of the Administrative Vicarious Execution Act because it illegally occupies and uses roads repeatedly and habitually, or it is necessary to implement roads promptly." However, the purport of the above provision is not to permit the compulsory execution of other kinds of obligations that are not subject to vicarious execution in principle because it does not fall under the inherent nature of the measure required by the road management agency under the above provision, to ensure that the road management agency can take more active and prompt measures against the act such as the prevention of traffic accidents and smooth road traffic flow (see, e.g., Supreme Court Decision 201Do184, Jan. 28, 2018).

Furthermore, Article 2 of the Administrative Vicarious Execution Act provides that the obligation subject to vicarious execution is "an act ordered directly by law (including an order issued by delegation of law, and an ordinance issued by a local government) or conducted by another person on behalf of another person as an act under an order issued by an administrative agency pursuant to a law." Thus, in order to carry out vicarious execution, a violation of an alternative duty by an administrative agency based on a law must be committed (see, e.g., Supreme Court Decision 97Nu157, Oct. 23, 1998). Thus, vicarious execution on the ground of a violation of a duty of vicarious performance is not allowed (see, e.g., Supreme Court Decision 97Nu157, Oct. 23, 1998). Unless an administrative agency issues a corrective duty of the tangible result arising from a violation of a duty of vicarious performance under the pertinent law, or is based on a law that requires the violator to bear such a duty, it cannot be deemed that the violator is naturally obligated to act to correct the result of such violation (see, e.g.

Ultimately, in order to apply the provision of Article 65(1) of the Road Act, there should be a violation of the duty to act as a substitute for the violation of the duty to remove the instant tent, and by ordering necessary measures pursuant to Article 83 of the Road Act, etc., the above violation of the duty to act should be converted into the duty to act as a substitute for the duty to act. Even according to the facts stated in the facts charged in this case, there was assault by the Defendants among the Defendants, who attempted to prevent the installation of the instant tent, who were placed at the site, and who were the Jeju Viewers public officials, including J and M, to remove the instant tent, and there was no evidence to support that the Jeju Television had issued a lawful removal order based on Article 83 of the Road Act as the road management agency in relation to the removal and execution of the instant tent.

Therefore, the execution of removal of this case does not meet the legal requirements and methods for specific execution of duties, and thus lacks legality. Therefore, the crime of obstruction of performance of duties is not established even if the defendants assault or intimidation against public officials performing their duties of removal execution.

Thus, since the facts charged against the Defendants fall under a case where there is no evidence to acknowledge that the removal execution is lawful, and there is no evidence to prove the facts charged, the judgment of innocence under the latter part of Article 325 of the Criminal Procedure Act and the summary of the judgment against the Defendants under Article 58(2)

Judges Kim Jae-ho

Judges Scareb