1. The summary of the facts charged of this case is the public official of Grade VI of local administration who is in charge of monitoring and controlling illegal buildings within the development-restricted zone under its jurisdiction as C and D C, and the defendant extended or remodeled an illegal building to the Flive Zone, E, a development-restricted zone, and was imposed a charge for compelling execution by extending the building illegally to the Flive Zone. On November 29, 2010, the defendant sent a notice of the short-term cooperation to the Korea Electric Power Corporation branch. On December 9, 2010, the defendant tried to take a short-term measure for illegal expansion and reconstruction of buildings E. On December 9, 2010, the police officers dispatched to E and at the site to suspend the short-term measure on the grounds that a warrant is needed for the short-term measure. To force the police officer dispatched to E and at the site, he, as his subordinate staff, proposed a warrant to execute the vicarious execution under the name of the Silive Market and had C obtain approval from the director, thereby having H do not have any duty by abusing authority.

The lower court found the Defendant guilty of the facts charged of the instant case on the ground that, in full view of the circumstances as indicated in its holding, the Defendant could not obtain a warrant for vicarious execution for the instant short-term measure, by abusing official authority and allowing H to do an act for which he did not have any obligation by having the instant vicarious execution warrant issued.

2. However, we cannot agree with the judgment of the court below for the following reasons.

In the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, “the abuse of authority and obstructing another’s exercise of rights” means that a public official unlawfully exercises his/her general authority and authority. In other words, in a formal and external manner, a public official appears to perform his/her duties, but its substance means an act other than legitimate authority. In light of the specific purpose of the public official’s act and the situation at the time, whether the act