(State)2012No79 A. Special obstruction of performance of official duties

B. Performance of official duties

1. A.

2.2.B

Prosecutor

Park Jong-chul, Lee In-bok (Court of Second Instance)

Attorney D (Korean Tribunal for the defendant)

Jeju District Court Decision 2012Gohap118 Decided October 18, 2012

April 24, 2013

The judgment of the court below is reversed.

Defendants are not guilty.

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

The gist of the grounds for appeal by the prosecutor is that the Jeju Viewing public officials at the time of the instant case made a request for voluntary removal of the tent installed illegally and issued an order for restoration. This constitutes an order for removal, etc. under Article 83 subparagraph 1 of the Road Act. Accordingly, even though the duty of omission under Article 45 of the Road Act, including the Defendants, is converted to the duty of alternative act, and the execution of removal of the tent by the above public officials constitutes legitimate performance of official duties under Article 65 of the Road Act, the court below acquitted the Defendants on the ground that the removal by the above public officials was not legitimate performance of official duties. Thus, the court below erred by misunderstanding of facts or misunderstanding of legal principles.

Before determining the grounds for appeal by the prosecutor, the prosecutor applied for permission to amend the Bill of Indictment with the content that the 11th and 14th of the facts charged in the instant case were modified as follows. Since this court permitted this, the subject of judgment against the Defendants was different, the judgment of the court below is no longer maintained.

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Therefore, the public officials belonging to the Jeju Viewing Construction and Transportation Bureau ordered the Defendants to voluntarily remove the said order several times on the grounds that the installation of a tent in India causes danger to pedestrian safety and risks to traffic flow. However, the Defendants refused to comply with the above order. Accordingly, the above public officials attempted to remove the tent that the Defendants intended to install on the Road Act, and the Defendants began to stop physical fighting with the public officials.

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and it is again decided as follows after pleading.

1. Summary of the facts charged in this case

Defendant A is the chairman of Jeju-do branch of the Association of Jeju-do, and Defendant B was elected as the chairman of the Association of Jeju-do Do Do Do Do Do Do Do Do Do Do on April 11, 2012. The Defendants, around October 10, 201, 25, and 10:00, 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 Do Do-do Do Do Do Do Do',' which was held by the Association of Jeju-do Do Do Do and the E-do Do Do Do Do Do Do Do Do , and tried to install a Do Do Do Do Do Do

Therefore, the public officials belonging to the Jeju Viewing Construction and Transportation Bureau ordered the Defendants to voluntarily remove their body over several occasions on the grounds that the installation of a tent in India causes danger to pedestrian safety and risks to traffic flow, but the Defendants refused to comply with the above order. Accordingly, the above public officials attempted to remove the tent that the Defendants were trying to install on the Road Act, and the Defendants began to wear physical fighting with the public officials to stop this.

A. Defendant A’s special injury resulting from obstruction of performance of official duties

Defendant A, on October 25, 201, around 10:37, at around 10:37, 201, she used a tent pipe (2 meters in length) for the installation of a tent, which is a dangerous object in India, on both hand and several occasions to remove the tent installed illegally on the road above the Defendant, who is a public official belonging to the Jeju Broadcasting & Transportation Bureau, was a public official of the said 쇠 pipe, thereby suffering approximately 3 cent in the upper part of the left side, depending on the above 쇠 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. Defendant B’s obstruction of performance of official duties

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

In the lower court’s argument as to the grounds of appeal, the prosecutor, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, the evidence alone presented by the prosecutor cannot be deemed lawful by meeting all the legal grounds, requirements, and procedures for the removal of tent at the time of the instant case. Therefore, even if the Defendants used violence or intimidation against public officials performing their duties of removal, it cannot be deemed that the crime of special obstruction of performance of official duties or the crime of obstruction of performance of official duties is established.

A. Although Jeju Viewing public officials at the time of the instant case made a verbal request for voluntary removal of a tent prior to the commencement of removal of a tent, in order to view it as an order of removal based on Article 83 subparagraph 1 of the Road Act, it shall be proved that the said voluntary removal request was made by the management agency having the authority to dispose of the road under the Road Act, and that the procedures and methods prescribed in the Administrative Procedures Act (see Articles 21(1), 24, and 26 of the Administrative Procedures Act, an administrative agency shall take prior notice prior to the disposition, and make a disposition in writing, except in cases where it is necessary to take an urgent measure for public safety, and shall notify the parties of the method of dissatisfaction regarding the pertinent disposition). However, there is no evidence to support the legitimate removal request made by Jeju Viewing public officials at the time of the instant case.

B. Furthermore, in light of the fact that the Jeju Viewer M, who participated in the removal and execution of the tent at the time of the instant case, stated consistently to the purport that the execution of the removal was based on Article 63 of the Road Act, and that it was not an execution of removal in accordance with the special cases of administrative vicarious execution as stipulated in Article 65 of the Road Act, the public officials participating in the removal and execution of the tent at the time of the instant case, issued orders, such as removal based on Article 83 subparagraph 1 of the Road Act, or carried out administrative vicarious execution due to the nonperformance of the order.

3. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of facts constituting an offense, it is judged not guilty under the latter part of Article 325 of the Criminal Procedure Act, and it is decided not to disclose the summary of the judgment in this case under Article 58 (2) of the Criminal

Judges of the presiding judge, Judges

Judges Transferability

Judges Lee Yong-woo