Defendant 1 and two others

Defendants

Kim Jong-ju

Daejeon District Court Decision 2006 Godan3544, 2007 Godan370 decided May 4, 2007

All appeals by the Defendants are dismissed.

1. Summary of the Defendants’ grounds for appeal

A. Error of mistake

The crime of obstruction of performance of official duties is established only where the performance of official duties is legitimate. However, the vicarious execution of this case is in accordance with the guidelines to close a branch office of the National Public Officials' Union (hereinafter referred to as the "Special Labor Union") instructed by the Ministry of Government Administration and Home Affairs (hereinafter referred to as the "Special Labor Union"), but the above guidelines itself is unlawful, and the vicarious execution is also illegal. Second, the above vicarious execution is limited to the duty to act as a substitute, and the above vicarious execution is limited to the duty to act as a substitute, and it does not constitute a duty to act as a substitute. Third, the vicarious execution of this case is unlawful because it does not fall under the duty to act as a substitute, and it does not fall under the duty to act as a substitute, and it is unlawful due to procedural defect. Therefore, the vicarious execution of this case does not constitute the crime of obstruction of official duties, or constitutes legitimate act

B. Unreasonable sentencing

Even if the above argument is not accepted, the punishment of the judgment of the court below (the fine of five million won) is too unreasonable.

2. Determination

A. As to the assertion of mistake of fact

In order to establish the crime of obstruction of performance of official duties, the execution of official duties needs to be lawful, and in determining the legality of performance of official duties, the criminal law concept should be the standard of legitimacy. Therefore, the legality of performance of official duties should be determined on the basis of formal legitimacy, not the substantive legitimacy. As long as the act falls under the general authority of the relevant public official, meets the requirements for specific performance of official duties prescribed by the Act, and is in accordance with the method and procedure prescribed by the Act

The Defendants committed the instant crime against Non-Indicted 1 and other public officials belonging to ○○-gun, who are the director of the Yeong-Gun autonomous administration division in charge of the closure of the office of major labor-management ○○○-gun branch office, and the said vicarious execution belongs to the general authority of the above public officials and met the requirements for specific duties prescribed in the law, and it was in accordance with the method and procedure prescribed in the law, and thus, the Defendants’ execution of duties is deemed lawful.

As long as the legitimacy of the Defendants’ act as a requirement for the establishment of the crime of obstruction of performance of official duties is determined on the basis of the formal legitimacy, the reason alleged by the Defendants cannot be the standard for determining the legality of performance of official duties. Furthermore, the Defendants’ act cannot be deemed as self-defense or legitimate act. Therefore, the aforementioned assertion by the Defendants is without merit.

B. Regarding the assertion of unfair sentencing

In light of various sentencing conditions indicated in the records of this case, such as the motive and background of the instant crime, the method of committing the instant crime, the circumstances after the crime, the degree of interference with the performance of official duties, the age and environment of the Defendants, etc., the lower judgment’s punishment is deemed to be too unreasonable, and the Defendants’ assertion is also without merit.

3. Conclusion

Therefore, under Article 364(4) of the Criminal Procedure Act, all appeals filed by the Defendants are dismissed. It is so decided as per Disposition.

Judges Jeong Jae-sil (Presiding Judge)