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서울중앙지방법원 2014.08.21 2014고단3639
공무집행방해
Text

The defendant shall be innocent.

Reasons

1. On April 21, 2014, at around 15:40, the Defendant: (a) received a request from a public official C belonging to the Seoul Gangseo-gu Seoul Metropolitan Government Office to transfer the collection and miscellaneous, etc. from the public official C, who controlled illegal street points, to a street store selling designated place; (b) stated that the Defendant “I am on the night, I am on the off, I am on the back, I am on the back, I am on the back, I am on the off, I am on the off, I am on the off, I am on the off, I am on the off, I am on the off, I am on the off, I am on the off, I am on the off, I am on the off, I am on the off, and interfere with the legitimate execution of duties concerning the duties of regulating the illegal street points of the above public official.

2. (1) Review is not clear on the record as to what the legal basis of the instant performance of official duties is (in the investigation record, there is no counter-data on what is the basis of the act of removal) and Article 65 of the Road Act.

(2) We examine whether the instant performance of official duties was lawful under Article 65 of the Road Act.

In order to recognize special cases in the application of vicarious administrative execution under Article 65 of the Road Act, ① The person shall be in breach of the duty of alternative act (see Supreme Court Decision 2008Do8214, Dec. 11, 2008); ② The person shall be in cases where it is difficult to achieve the purpose according to the procedure under Article 3(1) and (2) of the Administrative Vicarious Execution Act (see paragraph (1)); and ③ even if the person satisfies the requirements under paragraph (1), it shall be limited to the minimum necessary extent.

(2) According to the record, the Defendant had been operating the street store at the instant location for at least one year (1.20 pages of investigation records), and the fact that the public official C of the Gu office gave verbal guidance to the Defendant that he would not leave the street at the instant location (33 pages of investigation records), and the Defendant had lawfully obtained permission to occupy and use the road to leave the street at the location immediately adjacent to the instant location.