Defendant 1 and seven others

Freeboard

Law Firm Ro-Tech et al., Counsel for the defendant-appellant

1. The Defendants are not guilty.

2. As to Defendant 1, 2, 3, 4, 6, 7, and 8, a summary of each of the instant judgments shall be published.

1. Summary of the facts charged

On May 6, 2008, a civil society organization with 1,500 U.S. beef co-operation, etc. organized a "National Countermeasure Council (hereinafter referred to as the "Countermeasures Council") with a view to organizing a strike against full import of U.S. beef in the U.S., on the grounds that "the phase-out expansion agreement of U.S. beef import concluded with the Government of the Republic of Korea on April 18, 2008 is about to cause harm to the people's health, as well as the stroke negotiation."

Since May 2, 2008, the countermeasures conference followed the candlelight assembly, which was held by the Cheongyang, etc. in Seoul Jongno-gu, Jongno-gu, Seoul, with the lead of the 2MF nuclear strike jointly and severally from May 2, 2008, such as the “2MB war conference” and “Smi-do,” and tried to enter the Cheongdae-dong, etc. by holding a candlelight assembly, which is an outdoor assembly after sunset at the Cheongcheon-dong, every day from May 6, 2008.

In addition, the participating organization of the countermeasures conference decided to set up a tent, support candlelights and slelights in Seoul Square in Seoul Square in Seoul, Jung-gu, Seoul, and installed 30 tents without permission for each organization from June 4, 2008 to Seoul Square.

Accordingly, on June 23, 2008, the Seoul City Office sent a written request for voluntary removal to an organization that has installed a tent in Seoul Square, by June 23, 2008, by the 27:00 a.m. of the same month, and on June 27, 2008, notified the employees of the Seoul Office of Government Administration that compulsory removal will be enforced if they visit each tent and do not voluntarily remove until 12:00 of the same day.

However, organizations that installed a tent such as the countermeasures conference did not voluntarily remove the tent installed after 12:00 on the same day.

Therefore, on June 27, 2008, the Seoul National Office had broadcasted on the forced removal policies from around 15:10 on June 27, 2008, and began to remove the tent installed without permission by using more than 100 public officials of the Seoul National Office, including the general affairs department of the Seoul National Office and the non-indicted public officials belonging to the Jung-gu Office.

At that time, 50 members of the Countermeasures Council, including the Defendants, scattered 20 to 30 members around each tent, and obstructed the removal of the tent by public officials in such a way as not to have access to the tent by the public officials in charge of the removal work, not to attach a tent, or getting off the tent from the tent.

As a result, the Defendants interfered with the legitimate execution of duties to remove the tent installed by illegally occupying the land owned by the Seoul Metropolitan Government as part of the vicarious administrative execution by public officials of the above non-indicted and Jung-gu Office.

2. Determination

The crime of obstruction of performance of official duties stipulated in Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. Here, legitimate 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 specific performance of official duties. Thus, the crime of obstruction of performance of official duties is not established on the ground that the act of assault or intimidation against the public official performing the act of lack of such legality

Therefore, this case's administrative vicarious execution, which was interfered with the defendants' acts, is examined as to whether the requirements for legitimate official duties are satisfied.

The so-called "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 remove an imminent administrative obstacle in front of the snow, or where it is difficult to order him/her to order him/her in advance, by exercising the real force of an individual's body or property. Such administrative compulsory performance is not premised on the existence of specific obligations by statutes or by an order issued by an administrative agency or the non-performance 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 legal basis and may not be permitted if there is no such basis under the positive law. Further, Article 2 of the Administrative Vicarious Execution Act provides that the obligation subject to vicarious execution is "an act that is ordered directly by an Act (including an order issued by delegation of an Act and a municipal ordinance; hereinafter the same shall apply) or by an administrative agency's order issued by an Act."

In order to carry out vicarious execution under the Administrative Vicarious Execution Act, there must be a violation of the duty to act directly in accordance with the law or by the administrative agency's order based on the law, so vicarious execution on the violation of the duty to act is not permitted, and even in the case of violation of the duty to act in violation of the duty to act in violation of the duty to act in violation of the law, unless there is an order issued by the administrative agency based on the law that allows the violator to take the duty to correct the tangible result arising from the violation of the duty to act in violation of the duty to act in violation of the duty to act in question

In general, even in cases where vicarious administrative execution is permitted, if the person liable for performance fails to perform the vicarious execution within the given period, the purport of vicarious execution shall be notified in writing in advance. In addition, in cases where the person liable for performance fails to perform the obligation by the designated period in the guidance and disposition, by a warrant of vicarious execution indicating the time of vicarious execution and the name, etc. of the person in charge of vicarious execution dispatched to perform the vicarious execution, and only in cases where the person liable for performance fails to fulfill the obligation by the designated period, the administrative agency may directly execute it or have a third party execute it.

In this case, public officials belonging to the Seoul Metropolitan Government Office and Jung-gu Office shall send a written request for removal of Macheon-gu facilities to the Madung National Countermeasures Council, etc. on June 23, 2008 before compulsory removal of the tent installed without permission in the Seoul square, and on June 27, 2008, the request for removal of Macheon-gu facilities was made orally at around 11:00 on June 27, 2008, and the commencement of the removal counter execution of this case without going through the notification procedure under the Administrative Vicarious Execution Act and the notification procedure under the vicarious execution warrant. The members of the Countermeasure Council, including the Defendants, are not physically fighting, are not set up, are not set up, and are resistanceed for the removal counter execution.

Thus, the removal substitute execution of this case by public officials belonging to the Seoul Metropolitan Government Office and Jung-gu Office did not meet the legal requirements and methods for specific execution of duties, and thus lacks legality, and the defendants' acts of resistance to this do not constitute the crime of obstruction of performance of duties.

With regard to this, the prosecutor is a road under the Road Act, and Article 65 (1) of the Road Act provides that "the road management agency may take necessary measures, such as removal of things placed on the road, if it is difficult to achieve its purpose according to the procedure under Article 3 (1) and (2) of the Administrative Vicarious Execution Act because it repeatedly and habitually occupies and uses roads or it is necessary to implement roads promptly." The public officials belonging to the Seoul Metropolitan Government Office and Jung-gu Office may take necessary measures, such as removal of things placed on the road without following the procedure." The public officials belonging to the Seoul Metropolitan Government Office and Jung-gu Office order removal of a tent installed in the Seoul square pursuant to Article 83 of the Road

However, roads under the Road Act refer to motorways, general national roads, Special Metropolitan City roads, Metropolitan City roads, Do roads, local roads, City roads, Do roads, Gun roads, Gu roads (Article 2(1)1, Article 8 of the Road Act), and Seoul squares, although public registers are categorized as roads, they are installed in an open structure surrounded by the large traffic volume, and there is a facility distinguishing roads from squares, which is used as a space for rest, assembly or event of many citizens by controlling vehicle access. Thus, roads under the Road Act do not constitute roads.

Therefore, the prosecutor's argument that Seoul Square is a road under the Road Act is without merit, and there is no evidence to acknowledge that the removal counter execution of this case is legitimate execution of duty.

3. Conclusion

Therefore, inasmuch as there is no proof of the facts charged in the instant case, each of the Defendants is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and Defendant 1, 2, 3, 4, 6, 7, and 8 pursuant to Article 58(2) of the Criminal Act, the summary of each of the instant judgments shall be publicly notified.

Judges Long-term Crimes