[1] The case holding that in case where Defendants Gap et al., a party executive staff member of the National Assembly, damaged the entrance of the conference room and the house accumulated inside the entrance for the purpose of gaining access to the conference room at the conference room of the National Assembly Diplomatic and Trade Standing Committee, or destroyed water in the conference room for the purpose of obstructing the deliberation of the National Assembly, the defendants' act of damaging public goods and operating the conference room of the National Assembly cannot be assessed as a legitimate act barring illegality or an act satisfying the requirements for emergency evacuation

[2] Whether the National Assembly Security Guards in charge of security service of the National Assembly is legitimate to prevent a member from entering the meeting place of a standing committee member (negative in principle)

[3] The case holding that the defendants' act did not constitute the crime of obstruction of performance of official duties since it was merely against public officials performing official duties lacking legality, in case where the defendants, a party executive officer Gap et al. committed an act of cutting off or pushing ahead the clothes of the guards for the purpose of pushing ahead with the National Assembly guards who were posted in front of the conference room of the Foreign Affairs and Trade Standing Committee of the National Assembly, etc.

[1] In a case where Defendants, a political party executive staff member Gap et al. damaged the entrance of the National Assembly conference room and the entrance of the conference room for the purpose of gaining access to the conference room which is obstructed by the diplomatic and trade standing committee of the National Assembly, or destroyed water inside the conference room using a fire fighting unit for the purpose of interfering with the National Assembly deliberation, the case holding that the Defendants’ above act constitutes the elements of the crime of damaging public goods and the crime of operating the conference room of the National Assembly, and that the Defendants’ act constitutes a lawful procedure of seeking opinions from each other in the National Assembly, which is the representative organ of the National Assembly, and drawing a more desirable conclusion through a serious debate and concession, cannot be evaluated as a legitimate act that is dismissed for lack of the requirements of reasonableness in the method or means, and thus, it is difficult to judge the illegality as an act that satisfies the requirements of necessity of necessity of necessity.

[2] Article 49 of the Constitution declares the principle of majority of the National Assembly, but it is interpreted under the premise that the resolution is made with the consent of a majority of the incumbent National Assembly members present at the meeting and with the consent of a majority of the incumbent National Assembly members present at the meeting on the basis that all the National Assembly members who can be notified are given an opportunity to attend the meeting. Article 54 of the National Assembly Act stipulating the proceedings and quorum of the Standing Committee of the National Assembly provides the premise that the National Assembly is provided with the opportunity to freely discuss the members of all the committees under the condition that the opportunity to attend the meeting is guaranteed. In light of the above, anyone shall not interfere with any member of the National Assembly from entering the meeting place or the committee meeting of the National Assembly to attend the plenary session or the committee, and in particular, the National Assembly security service of the

[3] The case holding that in a case where the defendants, a political party executive officer Gap et al. committed an act of cutting off or smugglinging the clothes of the National Assembly guards to keep the National Assembly guards who had been posted in front of the opening of the meeting room with Gap party members et al. during the process of handling the bill of the Korea-U.S. FTA ratification by the Foreign Affairs and Trade Standing Committee of the National Assembly (hereinafter “Korea-U.S. FTA ratification”), the court held that in light of all circumstances, the defendants' act of closing the opening of the meeting room and preventing other party executive members from entering the meeting room by blocking them from entering the meeting room in front of the chairman's office is illegal measures beyond the limit of the chairman's right to maintain order, and the execution of official duties is unlawful since the court below's act was merely an act of aiding the chairman's illegal assistance, and the defendants' act of obstructing them from entering the meeting room was contrary to the legal principles as to obstruction of the performance of official duties, even if the court below found the defendants' act of obstructing the execution of official duties.

[1] Articles 20, 22(1), 138, and 141(1) of the Criminal Act / [2] Article 49 of the Constitution, Article 54 of the National Assembly Act, Article 136 of the Criminal Act / [3] Article 50 of the Constitution, Article 136(1) of the Criminal Act, Articles 49, 144, and 145 of the National Assembly Act

Defendant 1 and four others

Defendants

Law Firm Completion, Attorney Choi Sung-han

Seoul Southern District Court Decision 2009No2244 decided September 30, 2010

The part of the lower judgment against Defendants 2 and 4 is reversed, and that part of the case is remanded to the Seoul Southern District Court Panel Division. The appeals by Defendants 1, 3, and 5 are dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ damage to public goods and Defendant 2’s consent to the National Assembly president’s resolution

A. “Act which does not contravene social norms” under Article 20 of the Criminal Act refers to an act permissible in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Whether certain act is a legitimate act that does not violate social norms, and thus, it should be determined individually by examining and reasonably under specific circumstances. Thus, in order to recognize such a legitimate act, the following requirements should be met: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interests and the infringed interests; (iv) balance between the protected interests and the protected interests; and (v) supplementary nature that there is no other means or method than the act (see Supreme Court Decision 2003Do300, Sept. 26, 2003). In addition, Article 22(1) of the Criminal Act refers to an act with considerable reason to avoid the present danger to one’s own or another person’s legal interests; and (iii) an act of necessity for escape should be the only means or method to protect the victim’s interests, such as the act.

B. According to the reasoning of the judgment below, the defendants jointly with the non-indicted 1, etc. for the purpose of gaining the entrance of the closed conference room with the name of the Democratic Party and the Democratic Labor Party Council members, council members, staff members on duty, workers on duty, etc. in front of the conference room of the National Assembly (hereinafter referred to as "non-indicted 1") from around 10:30 to 13:30 on December 18, 2008, with the aim of gaining the entrance of the closed conference room from the corridor to the non-indicted 3, Defendant 3 shall attach the entrance door at several times, and Defendant 2, Defendant 4, and Defendant 5 shall remove the entrance door from each of their inside, and then close the door door at the conference room to the non-indicted 1, or remove the door door from the front of the conference room to the non-indicted 2, such as the door 1, the 2nd of the National Assembly members of the National Assembly, or the 3rd members of the National Assembly.

In light of the above legal principles and records, it is too clear that the above acts of the Defendants constitute the elements of the crime of damaging public goods and the crime of operating the National Assembly meeting place, and it is also difficult to evaluate the Defendants' acts as legitimate acts that are excluded from illegality as acts and acts that meet the requirements of necessity of necessity of necessity of necessity of necessity of the law, since they immediately go through the lawful procedure of seeking opinions from each other in the National Assembly, which is the representative organ of the people, and drawing a more desirable conclusion through a serious debate and concession.

Therefore, although there are no parts that are inappropriate at the time of the reasoning of the lower court, the lower court’s conclusion that rejected the Defendants’ assertion of grounds for rejecting illegality and convicted all of the facts charged is justifiable. The relevant grounds for appeal cannot be accepted in entirety.

2. As to the obstruction of performance of official duties by Defendants 2 and 4

A. The crime of obstruction of the performance of official duties under Article 136 of the Criminal Act is established only where the performance of official duties is legitimate. Even if a public official commits assault or intimidation against a public official performing a duty lacking legitimacy, it cannot be subject to the crime of obstruction of the performance of official duties. In this case, lawful performance of official duties refers to cases where the act is not only within the abstract authority of the public official, but also meets the legal requirements and methods for specific performance of official duties (see, e.g., Supreme Court Decisions 2004Do4731, Oct. 28, 2005; 2007Do7514, Apr. 28, 201).

B. According to the reasoning of the judgment below, the court below held that the chairman of the National Assembly Standing Committee may take preventive measures, such as restricting the attendance, if necessary to maintain order in light of the nature, contents, situation, etc. of the meeting, and that there may be increased the passage of the meeting room to ensure the effectiveness of measures to restrict the attendance, and as such, incidental measures, such as arranging the opening and closing hours of the meeting room or regulating the opening and closing hours of the entrance, may also be taken. Thus, the court below found Defendant 2 to be guilty of the act of maintaining order during the meeting of the National Assembly from around 200 days before the scheduled date of the meeting of this case, under the circumstance that the act of disturbance is anticipated, including: (i) access to the meeting room on the day is limited to the outside committee members, the staff of the meeting meeting, the staff of the meeting, the public officials concerned, the National Assembly broadcasting, and the representative reporters determined by the National Assembly, and (ii) the entrance of the meeting on the day is closed in accordance with the direction of the chairperson; (iv) the National Assembly guards and protective guards, etc.

C. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the reasoning of the judgment below and the records, the chairperson took measures such as strengthening the expenses for the meeting room by exercising the right to maintain order as acknowledged by the court below prior to the opening of the meeting room. The chairperson of the National Assembly was waiting for the outside of the meeting room by the chairperson and nine members belonging to the outside party to the meeting room prior to the date of the meeting, and the non-indicted 6 and the non-indicted 8 members, who were the members belonging to the Democratic Party, were allowed to attend the meeting room prior to the meeting room, to find out the reasons for the closure of the meeting room by the non-indicted 6 and the non-indicted 9 members belonging to the non-indicted 9 members prior to the meeting room, who were not allowed to attend the meeting room and to take measures for maintaining the order of the non-indicted 9 members prior to the meeting room, and the situation that the non-indicted 9 members prior to the meeting room and the non-indicted 9 members belonging to the non-indicted 1 members prior to the meeting room were determined to be able to attend the meeting room.

Furthermore, Article 49 of the Constitution declares the principle of majority of the National Assembly, but it is interpreted under the premise that the resolution will be made with the attendance of a majority of the incumbent National Assembly members and with the consent of a majority of present members on the basis of the opportunity to attend the meeting. Article 54 of the National Assembly Act, which provides for the proceedings and quorum of the Standing Committee of the National Assembly, also provides the premise that the opportunity to freely discuss is granted to all the members of the committee under the condition that the opportunity to attend the meeting is substantially guaranteed, no person shall obstruct any member of the National Assembly from entering the meeting place or the meeting place of the committee to attend the plenary session or the committee meeting. In particular, the National Assembly’s situation where security service of the National Assembly is in charge of security service of the National Assembly is unlawful unless there are any special circumstances to justify such act. Thus, the act of the National Assembly guards posted at the meeting place to prevent any person from entering the meeting place of the National Assembly members belonging to a democratic party is merely an unlawful act, such as closing the meeting place of the committee chairperson and preventing any entry.

Meanwhile, even if Defendants 2 and 4, who were called up in the meeting place in accordance with the direction of the relevant political party, have committed an act of cutting off clothes of the National Assembly guards in the course of keeping the National Assembly guards who set up the entrance with them in order to bring in the meeting place, on the grounds that their duties as party workers are closely related to the activities of the National Assembly members, such act is nothing more than a counter against the public official performing duties lacking legality, and thus, the crime of obstruction of performance of official duties under the premise that the execution of official duties is legitimate is not established.

Nevertheless, the court below erred by misapprehending the legal principles on the obstruction of performance of official duties, thereby adversely affecting the conclusion of the judgment, on the grounds that the above acts of the National Assembly Security Guards constitute legitimate execution of official duties, and thereby found Defendant 2 and Defendant 4 guilty. The above Defendants’ ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, among the judgment of the court below, the part concerning the obstruction of performance of official duties against Defendants 2 and 4 and the part concerning the concurrent crimes under the former part of Article 37 of the Criminal Act are all reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. All appeals by Defendants 1, 3, and 5 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)