Accordingly, the defendant interfered with the legitimate execution of official duties concerning the removal of illegally occupied objects of road by a public official of the above Gu office.

2. Although there was a fact that the defendant occupied the excavated machine as stated in the facts charged, the act of removing the street store in this case by a public official of the Dongjak-gu Office was illegal act that did not meet the requirements and methods for the removal counter execution as stipulated in Article 65(1) and (2) of the Road Act, and thus, the act of the defendant asserted this does not constitute obstruction of performance of official duties

3. Determination

A. The crime of obstruction of performance of official duties under 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 meeting the legal requirements and methods for specific performance of official duties. Thus, even if the act of assault or intimidation against the public official performing the act of lack of legitimacy, it cannot be viewed as the crime of obstruction of performance of official duties.

(See Supreme Court Decision 2004Do4731 Decided October 28, 2005, etc.). B.

First of all, according to each of the records of the lapsy meeting the requirements for the removal counter execution stipulated in Article 65(1) of the Road Act, witness F's legal statement, and each of the Dongjak-gu official text of the Dongjak-gu Office (Investigation Records 114 pages, 116 pages), D's front report in Dongjak-gu Seoul Metropolitan Government is a place where street points are installed repeatedly and habitually, and the road is illegally occupied and used by installing street points. Accordingly, the lapsy or neighboring areas.