[1] The meaning and standard of determining "legal performance of official duties" in the crime of obstruction of performance of official duties

[2] The case affirming the judgment below which acknowledged the crime of obstruction of performance of official duties against the Defendants in case where the branch office of the Korean Public Officials' Union, a non-legal organization, used the former office facilities as a branch office, and the head of the Gu voluntarily performed the vicarious execution pursuant to the Administrative Vicarious Execution Act after voluntary closure request, and the Defendants such as the branch office, etc. committed an assault against the public officials who committed the said vicarious execution

[1] Article 136 of the Criminal Act / [2] Articles 30 and 136 (1) of the Criminal Act, Article 3 of the Administrative Vicarious Execution Act

[1] Supreme Court Decision 92Do506 Decided May 22, 1992 (Gong1992, 2059) Supreme Court Decision 2004Do4731 Decided October 28, 2005, Supreme Court Decision 2007Do6088 Decided October 12, 2007, Supreme Court Decision 2007Do7514 Decided April 28, 201 (Gong2011Sang, 1076)

Defendant 1 and nine others

Defendants and Prosecutor

Attorney Kim Jong-han

Seoul Western District Court Decision 2008No49 decided May 22, 2008

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

A. The part concerning obstruction of performance of official duties

The crime of obstruction of performance of official duties under Article 136 of the Criminal Code is established when the performance of official duties is legitimate. Here, legitimate performance of official duties is not only within the abstract authority of a public official, but also within the authority of the public official, and also must meet the requirements and methods as an act of official duties. Whether a certain performance of official duties is legitimate or not should be determined objectively and reasonably based on the specific situation at the time of the act (see, e.g., Supreme Court Decisions 92Do506, May 22, 1992; 2007Do6088, Oct. 12, 2007).

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the office subject to the administrative vicarious execution of this case was provided by the head of Mapo-gu Office to be used for the operation of the work council of public officials belonging to the Mapo-gu Office. While the office was used for the purpose of the above work council, public officials belonging to the above work council join the National Public Officials' Union (hereinafter "major labor union") as organizations other than the law and arbitrarily used it as the office of Mapo-gu branch office, the head of Mapo-gu, who is the person in charge of the management in the above office office of the above office, including the above office, will complete illegal use of the office of this case for the operation of the major labor union of the above organization other than the above law after voluntary closure request, following the procedure of issuing and notifying a warrant of vicarious execution.

Examining the above circumstances and status of the use of the office of this case, background and process of the execution of administrative vicarious execution, contents of the warrant for vicarious execution, and contents of the execution of administrative vicarious execution, etc. in light of the legal principles as seen earlier, it is difficult to view that the use of the office of this case by the original Mapo-gu Council is a public official, etc. under the allocation of the office based on the authority to manage the office of Mapo-gu head, and thereby, the workplace council acquired independent possession of the office. Accordingly, it is difficult to view that the use of the office of this case by the major Nowon-gu branch is not beyond the extent of the voluntary use of the office facilities, and it is also difficult to view

Therefore, the main purpose of the administrative vicarious execution of this case is to restore the function of the Mapo-gu Office by removing major labor union members kept in the office and closing the office in order to suspend the actual illegal use of the above office of major labor union members who are organizations other than the law. Thus, the administrative vicarious execution of this case can be deemed legitimate execution of official duties as it covers the removal duty, which is the alternative duty of act, which is the object of vicarious execution, and the defendants' act of assault against the public officials who execute it should interfere with the legitimate execution of official duties.

Therefore, although the court below found the defendants guilty of obstruction of the performance of official duties in this case against the same purport, its reasoning is somewhat insufficient, it is just in its conclusion, and it does not err in the misapprehension of legal principles as to the vicarious administrative execution and the crime of obstruction of the performance of official duties as otherwise alleged in

B. The part concerning the violation of the Punishment of Violences, etc. Act (joint departure)

According to the reasoning of the judgment below, the court below determined that there was a communication between Defendant 1 and the other Defendants not to comply with the request for the withdrawal of the Nonindicted Party, considering the fact that Defendant 1, the chief of Mapo-gu Labor Relations Branch, was made by the Defendants after the Defendants received the request for the withdrawal from the Nonindicted Party, even though the rest of the Defendants except Defendant 1 did not directly receive the request for the withdrawal from the Nonindicted Party. In light of the evidence duly adopted by the court below, the court below's aforementioned determination is just and acceptable, and contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of logic and experience and free evaluation of evidence or by misapprehending the legal principles on the crime of non-compliance with the removal.

2. As to the Prosecutor’s Grounds of Appeal

According to the reasoning of the judgment below, the court below found the Defendants not guilty of all primary and conjunctive facts charged on damage to public goods on the ground that there is no evidence to support the Defendants that they had impaired their utility by destroying the glass, and that at the time of the construction of a barriers by using the consignee, it is difficult to view that public officials belonging to Mapo-gu Office would have inevitably damaged the glass in the course of performing the business of closing the office of this case. In light of the evidence duly admitted by the court below, the court below's aforementioned determination is just and acceptable, and contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of logic and experience and free evaluation of evidence, or by misapprehending the legal principles on the crime of damage to public goods and indirect principal.

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 Ahn Dai-hee (Presiding Justice)