(b) The case holding that the police officer's act of forcing a flagrant offender of a minor crime punishable by a fine not exceeding 50,00 won, detention, or minor fine does not constitute an obstruction of performance of official duties, since it cannot be viewed as legitimate performance of official duties.

B. Where the act of the non-indicted is merely a minor crime punishable by a fine not exceeding 50,00 won statutory penalty, detention, or a minor fine, even if he/she is a flagrant offender, he/she cannot arrest him/her without a warrant, and he/she cannot force him/her to voluntarily commit a crime for the purpose of prior suppression of a crime or traffic control only. Therefore, the police officer's act of forcing a police officer against his/her will cannot be deemed a legitimate performance of official duties. Therefore, even if the defendant committed a assault against the police officer to restrain the police officer's act, this does not constitute an obstruction of performance of official duties.

The crime of obstruction of performance of official duties stipulated in Article 136 of the Criminal Code is established only when the performance of official duties is legitimate. Here, legitimate performance of official duties refers to not only the abstract authority of a public official, but also the case where the specific requirements and methods are met. Thus, even if an assault was committed against a public official who performs an act of lack of legitimacy, it cannot be viewed as a crime of obstruction of performance of official duties (see, e.g., Supreme Court Decision 91Do2797, Feb. 11, 1992).

According to the records, the court below acknowledged that police officers' act of violence as stated in the judgment of the court below was committed by the method of preventing the defendant from forced boarding of the police patrol vehicle in order to force the police patrol vehicle in order to proceed with the police after requesting the non-indicted 2, who is an employee of the above company, who was punished for farming at the front of the above company in this case, and the police officers' act of the above B violated Article 63 (3) 2 through 24 and 26 of the Road Traffic Act, and its statutory punishment is only minor crimes of fine not exceeding 50,00 won, detention, or minor fine, and it is not possible to arrest the above B without a warrant even if the above B is an offender, and it is not possible to force voluntary driving on the above B for the reason of prior suppression of crime or traffic control. Thus, the above police officers' act of violence cannot be viewed as an unlawful act of obstruction of the execution of official duties against their own will, and it cannot be viewed as an act of obstruction of the execution of official duties as a legitimate execution of official duties.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)