Defendant 1 and seven others

Prosecutor

Gain Doctrine

Law Firm Lox, Attorneys Lee Hun-sik et al.

Seoul Central District Court Decision 2008 High Court Decision 7194 Decided July 24, 2009

All appeals filed by the prosecutor against the Defendants are dismissed.

1. Summary of grounds for appeal;

In violation of Article 45 of the Road Act, the participating organizations of the National Countermeasure Committee failed to implement the request for removal in advance under Article 83 of the Road Act, even though the Seoul Metropolitan Government received a request for removal in accordance with Article 83 of the Road Act. Thus, the public officials of the Seoul Metropolitan Government Office commenced the removal of the instant case on the basis of the special provisions of Article 65 (1) of the Road Act. However, the court below determined otherwise as the execution of public duties lacking legality and acquitted the Defendants of all the charges of this case. Thus, the court below erred by misapprehending the legal principles on the legality of vicarious execution in accordance with the Road Act and the Administrative Vicarious Execution Act, which affected the conclusion of the judgment.

2. Summary of the facts charged in this case and the judgment of the court below

A. Summary of the facts charged in this case

On May 6, 2008, a civil society organization with 1,500 Korean Film Co., Ltd. organized a "National Countermeasures Council (hereinafter referred to as the "Countermeasures Council") against the full import of U.S. beef from the U.S. in order to systematically establish a strike against the full import of U.S. beef from the U.S., on the ground that "the phased import expansion agreement of U.S. beef entered into with the Government of the Republic of Korea on April 18, 2008 is a stroke negotiation, as well as a result of undermining the citizens' health rights."

Since May 2, 2008, the countermeasures conference followed the candlelight assembly, which was held in the Cheongdong-dong Seoul Jongno-gu Seoul, with the lead of the 2MB nuclear strike, the Cheongdong-dong, etc. from May 2, 2008, followed by the candlelight assembly. From May 6, 2008, the party conference held the candlelight assembly, which is an outdoor assembly after sunset at the Cheongdong-dong-dong-gu square. From May 24, 2008, the party conference tried to enter the Cheongdong-dong-dong road demonstration from the Cheongdong-dong square or Seoul square to the next day after the candlelightlight assembly, the party conference tried to go into the Cheongdong-dong-dong-dong road demonstration, such as the three-type, paper, newspaper, etc.

In addition, the organization participating in the countermeasures conference decided to set up a tent in Seoul Scenic located in Jung-gu, Seoul, Seoul, to support the candlelight assembly and to see it. From June 4, 2008 to June 4, 2008, 30 tents were installed without permission for each organization.

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, and on June 27, 2008, sent a written request for voluntary removal by the morning. On June 27, 2008, the Seoul Office notified the employees of the Seoul City Office to the effect that compulsory removal will be made if they visit each tent and do not voluntarily remove until 12:00 on the same day. However, the 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, from June 27, 2008 to June 15:10, 2008, the Seoul National Office started to remove the above tent installed without permission by using more than 100 public officials of the Seoul National Office, including the general affairs division of the Seoul National Office and the non-indicted public officials of the Jung-gu Office.

However, 50 members of the Countermeasures Council including the Defendants were scattered with 20 to 30 members around each tent, so that public officials engaged in the removal work may not have access to the tent, and public officials may interfere with the removal of the tent in such a way as not putting a tent, not putting a tent, or getting out of the tent.

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

B. The judgment of the court below

The court below found the defendants not guilty of the charges of this case on the ground that the execution of the removal counter execution of this case did not go through the notification procedure under the guidance and vicarious execution warrant as stipulated in Article 3 (1) and (2) of the Administrative Vicarious Execution Act, and the special provisions of Article 65 (1) of the Road Act can not be applied because the Seoul square does not fall under the roads subject to the Road Act, and the above procedure cannot be omitted. Thus, the act of the removal counter execution of this case does not meet the legal requirements and methods for the specific performance of official duties, and it does not constitute an act lacking legality.

3. Judgment of the court below

A. The crime of obstruction of performance of official duties under Article 136 of the Criminal Code is established only when the performance of official duties is legitimate. Here, legitimate performance of official duties refers to not only the abstract authority of a public official, but also the case meeting the legal requirements and methods for specific performance of official duties. Thus, even if an act of assault or intimidation against a public official performing an act of lack of legitimacy is committed, it cannot be viewed as a crime of obstruction of official duties (see Supreme Court Decision 2004Do4731, Oct. 28, 2005, etc.).

Therefore, in this case, in order to establish the crime of obstruction of the performance of official duties against the Defendants, it shall be recognized that the execution of official duties against the removal of this case satisfies all the legal grounds, requirements, and procedures. Therefore, this paper will examine them.

B. First of all, according to Article 3(1) and (2) of the Administrative Vicarious Execution Act as to whether the removal counter execution of this case was lawfully made in accordance with the Administrative Vicarious Execution Act, which is the legal basis for the removal counter execution of this case, "in order to carry out the removal counter execution of this case, if a considerable period of time is set and if the obligor fails to perform the obligation by the designated period of time, the pertinent administrative agency shall notify the obligor of the time to carry out the vicarious execution, the name of the person in charge of the vicarious execution who is dispatched to carry out the vicarious execution of this case, and the estimated amount of expenses for the vicarious execution of this case," and even according to all evidence shown in the records of this case, there is no evidence to acknowledge that the public officials of Seoul Metropolitan Government Office and Jung-gu Office started the removal counter execution of this case prior to the commencement of the removal counter execution of this case, the removal of the execution of this case cannot be deemed legitimate execution of public duties based on the Administrative Vicarious Execution Act.

C. Next, as to whether the removal counter execution of this case can be seen as a legitimate administrative vicarious execution under Article 65(1) of the Road Act, Article 65(1) of the Road Act provides that “If roads are occupied and used repeatedly and habitually, or it is difficult to achieve its purpose in accordance with the procedures provided for in Article 3(1) and (2) of the Administrative Vicarious Execution Act, the road management agency may take necessary measures, such as removal of things placed on the road, without following the said procedures,” thereby recognizing the guidance of Article 3(1) of the Administrative Vicarious Execution Act and exceptions to the notification procedure under Article 65(1) of the Road Act.

However, Article 65 (1) of the Road Act is a road provided for the traffic of the general public, which is stipulated in Article 8 of the Road Act (Article 2 (1) 1 of the Road Act) and applied to the removal, etc. of the things placed on the road, which is not a road, but a road. On the other hand, it cannot be deemed a road subject to the Road Act because the land category on the land cadastre is a road. As the court below properly explained, the Seoul plaza is an open plaza where there is a land category on the public register but a facility separate from its surrounding areas is installed, and it is used as a space for the rest, assembly, or event of ordinary citizens by controlling the access of ordinary vehicles, and it cannot be deemed a road as prescribed in the Road Act. Accordingly, the above special provisions under Article 65 (1) of the Road Act cannot be applied to the removal substitute execution of this case.

The purpose of Article 65 (1) of the Road Act is to recognize special cases of vicarious administrative execution that allow the presentation of vicarious execution prescribed by Article 3 (1) and (2) of the Administrative Vicarious Execution Act or the notification of vicarious execution warrant to be omitted, and it does not recognize any provision of immediate administrative enforcement (see Supreme Court Decision 2008Do8214, Dec. 11, 2008). Thus, in order to apply the above provision, there should be a violation of the alternative duty of removal of the instant tent, which belongs to the organization to which the countermeasures committee belongs, and on the premise, there should be a violation of the duty of removal of the instant tent, and on the other hand, there should be a violation of the duty of removal of the road Act Article 45 (1) of the Road Act, which is the result of such violation of the duty of removal duty, and it should not be deemed that the order of removal of the road directly by the law or the order of removal by the government agency based on the Act Article 8 (3) of the Road Act, which is unlawful.

D. Therefore, the removal execution of this case by the public officials of the Seoul Metropolitan Government Office and Jung-gu Office did not meet the legal requirements and methods concerning the specific performance of duties, and thus, it is deemed that there was a lack of legitimacy. Thus, even if the defendants fighting their body or interfered with it by setting up against them, the crime of obstruction of performance of official duties is not established. Thus, the judgment of the court below that held as above cannot find the error of law as otherwise pointed out by the prosecutor.

4. Conclusion

Therefore, the prosecutor's appeal of this case is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jong-chul (Presiding Judge)