[1] Whether the crime of obstruction of performance of official duties is established in a case where violence or intimidation is committed against a public official performing an act of duties lacking legality (negative)

[2] In a case where the City Mayor performed the administrative vicarious execution pursuant to the Administrative Vicarious Execution Act with respect to the office of a Si office, which is a Si office facility where the regional headquarters of the Korean Public Officials' Union, was arbitrarily occupied by a non-legal organization, after the voluntary closure request, and the Defendants and public officials belonging to the labor union committed an act of assault, etc. against the public officials who were carrying out the vicarious execution, the case affirming the judgment below that the above administrative vicarious execution

[3] The meaning of "injury" in the crime of injury resulting from special obstruction of performance of official duties

[4] In a case where Defendants were prosecuted for committing a crime of causing bodily obstruction in the performance of special official duties on the grounds that they interfered with the legitimate execution of duties and caused the injury to the public officials, the case affirming the judgment of the court below that the victims’ wife suffered from the victims cannot be deemed as having been injured as a possible natural therapy without any special treatment

[1] Article 136 of the Criminal Act / [2] Articles 136(1) and 144(1) of the Criminal Act, Article 3 of the Administrative Vicarious Execution Act / [3] Articles 144(2) and 257 of the Criminal Act / [4] Articles 136(1), 144(1) and (2) of the Criminal Act, Article 3 of the Administrative Vicarious Execution Act, Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2004Do4731 Decided October 28, 2005, Supreme Court Decision 2007Do7514 Decided April 28, 201 (Gong2011Sang, 1076), Supreme Court Decision 2008Do4721 Decided April 28, 201 / [3] Supreme Court Decision 98Do3732 Decided January 26, 199 (Gong199Sang, 407), Supreme Court Decision 99Do4305 Decided February 25, 200 (Gong200Sang, 896)

Defendant 1 and four others

Defendants and Prosecutor

Law Firm International Law Firm, Attorney Exclusively

Busan High Court Decision 2007No908 decided July 22, 2010

All appeals are dismissed.

1. As to the Defendants’ appeal

The crime of obstruction of the performance of official duties under Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. Even if a public official commits assault or intimidation against a public official performing an act of lacking legality, it cannot be subject to the crime of obstruction of the performance of official duties. The lawful performance of official duties refers to not only the act belongs to the abstract authority of the public official, but also the case meeting the legal requirements and methods for specific performance of official duties (see Supreme Court Decision 2004Do4731, Oct. 28, 2005). Further, Article 83 of the former Public Property and Commodity Management Act (amended by Act No. 1006, Feb. 4, 2010; hereinafter “Public Property Act”) provides that “When a public official occupies or installs a facility without justifiable cause, the provisions of Articles 3 through 6 of the Administrative Vicarious Execution Act shall apply mutatis mutandis to the removal of the official duties under Articles 97 and 97 of the same Act.” The purport of the above provision is that the provision does not apply mutatis mutandis to the individual compulsory execution requirement and procedure.

According to the reasoning of the judgment below and the evidence adopted by the court below, the office subject to the administrative vicarious execution of this case is an office occupied by the Korean Public Official Workers' Union (hereinafter "major labor union") as an organization other than the law, without reporting the establishment of a legitimate trade union although it could be established, and the Busan Metropolitan City Mayor, who is the manager in charge of the office in the above office, including the above office, has taken the lead to the execution of the office's illegal use of the office in this case for the operation of the major labor union in the above office, after the request for voluntary transfer, such as removal of time under the Administrative Vicarious Execution Act, and the issuance and notification procedures of a warrant for vicarious execution.

Examining the circumstances and status of the use of the office of this case, the background of the execution of vicarious administrative execution, the details of the books and warrants for vicarious execution, and the details of the execution of vicarious administrative execution, etc., in light of the aforementioned legal principles, the use of the office of this case by the major Nowon Busan Busan Headquarters is difficult to be deemed as having obtained independent possession of the office because it is not a public official, etc. under the allocation of the office based on the authority to manage the office building of Busan Metropolitan City, the use of the office of this case is either by using the office facilities or by

Therefore, the main purpose of the instant administrative vicarious execution is to restore the function of the Busan Metropolitan City office by removing major labor union members kept in the office and closing the office in order to suspend the unlawful use of the above office of major labor union members who are non-legal organizations. Thus, the instant administrative vicarious execution can be deemed legitimate as it targets the removal duty, which is a alternative act duty, which is the object of vicarious execution, and it can be deemed that the overall administrative execution of this case targets the duty of removal duty, which is a substitute act duty, and the act of assault by the public officials of the Busan Metropolitan City Office of Busan Metropolitan City and the major labor union, against the public officials conducting such execution, constitutes legitimate execution of official duties (see Supreme Court Decision 2007Do7514, Apr. 28, 201).

In the same purport, the court below is just in finding the Defendants guilty of all the charges of this case, and there is no error in the misapprehension of legal principles as to the vicarious administrative execution and the obstruction of performance of official duties, as

2. As to the prosecutor's appeal

The term "injury" under Article 257 of the Criminal Act refers to "injury to the completeness of the body of a victim or interference with physiological functions (see, e.g., Supreme Court Decisions 98Do3732, Jan. 26, 1999; 99Do4305, Feb. 25, 2000). In the crime of causing special obstruction of performance of official duties, the crime of causing bodily harm cannot be assessed as "injury" under Article 257 of the Criminal Act, and where it is difficult to deem that the crime of causing special obstruction of performance of official duties was committed, so it does not constitute the crime.

The court below maintained the first instance court that acquitted victims of the physical conflict of this case on the ground that the victim's wife suffered from the victim's injury during the physical conflict of this case is possible to recover nature after the lapse of time. In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles as to injury due to violation of the rules of evidence, contrary to the allegations in the grounds of appeal.

In addition, the prosecutor appealed against the guilty portion of the judgment of the court below, but there is no indication of the grounds for appeal in the petition of appeal and there is no statement of the grounds for appeal in the appellate brief.

3. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)