[1] Scope of the road management right of a road management agency, and whether the act of preventing a person who commits a prohibited act under Article 45 of the former Road Act is subject to legitimate execution of duties (affirmative in principle)

[2] The case holding that the defendant's act of assaulting a public official performing public duties based on road management authority constitutes obstruction of performance of official duties in case where the defendant installed a tent on the sidewalk of the side of the viewing road of Gap and used violence to the public official under Gap's control

[1] A road management agency has comprehensive management rights to ensure that roads can function as roads by installing roads, maintaining their existence and providing them for general traffic. Such road management rights include not only the maintenance and management of roads facilities, etc. so that they can function as roads, but also the authority to prohibit or refrain from performing acts impeding the function of roads to the extent reasonable and reasonable. However, according to the former Road Act (amended by Act No. 10156, Mar. 22, 2010) (amended by Act No. 10156, Mar. 22, 2010), any person is not prohibited from damaging roads, piling up obstacles on roads, and other acts impeding road structure or traffic without justifiable grounds (Article 45). Thus, preventing a person who committed such prohibited acts based on road management rights against a person who committed such prohibited acts falls under a legitimate act of performing his/her duties, barring special circumstances (Article 45).

[2] The case holding that in case where the defendant committed assault against public officials belonging to the road management agency while installing a tent on the sidewalk of the road, which is a general national highway adjacent to Gap's viewing, for the purpose of farming, and neglecting public officials belonging to the road management agency for the purpose of road management and preventing the completion of the installation of facilities, since it falls within the category of exercise of comprehensive road management rights as reasonable measures to ensure that the original purpose of the road is achieved, the defendant's act of assaulting public officials performing public duties based on road management rights constitutes obstruction of the performance of official duties

[1] Article 136 of the Criminal Act; Article 45 of the former Road Act (Amended by Act No. 10156, Mar. 22, 2010) / [2] Article 136 (1) of the Criminal Act; Articles 10 (1), 20 (1) 1, 20 (2), and 45 of the former Road Act (Amended by Act No. 10156, Mar. 22, 2010); Article 16 (1) of the former Rules on the Standards for Structures and Facilities of Roads (Amended by Presidential Decree No. 10156, Feb. 19, 2009)

Defendant 1 and two others

Prosecutor

Suwon District Court Decision 2010No6183 decided July 20, 2011

The part of the lower judgment against Defendant 3 is reversed, and that part of the case is remanded to the Suwon District Court Panel Division. The Prosecutor’s appeals against Defendant 1 and 2 are all dismissed.

1. As to the guilty part of the judgment below

Of the judgment below, the prosecutor appealed against the part of the judgment below which found the Defendants guilty, but there is no statement in the petition of appeal or the appellate brief on the grounds of objection.

2. As to the acquittal portion of the lower judgment

The grounds of appeal are examined.

A. As to the allegation in the grounds of appeal that an outdoor assembly constitutes an outdoor assembly

(1) On March 23, 2009, the lower court affirmed the first instance judgment that acquitted the Defendants on this part of the facts charged, on the ground that it cannot be deemed that Defendant 1 and 2 held an assembly without reporting the assembly in front of the conference room of the Gyeonggi-do Construction and Transportation Standing Committee of the Gyeonggi-do Council, which is the place where the above Defendants held the assembly, and it is obvious that the front of the conference room of the Construction and Transportation Standing Committee of the Gyeonggi-do Council, which is the place where the above Defendants held the assembly, does not constitute an outdoor assembly, and that the entrance of the general public is managed and controlled. In light of the nature of the place, it is necessary to take prior measures to prevent infringement of the interests of others and the maintenance of public safety and order, and it is also difficult to view that the above assembly organized by the above Defendants as a place requiring prior reporting.

(2) Examining the records in light of the provisions of the Assembly and Demonstration Act, which defines as an outdoor assembly at a place without ceiling or with no erosion control closed, etc., the lower court’s aforementioned determination is justifiable. The lower court did not err by misapprehending the legal doctrine on outdoor assembly, etc., as otherwise alleged in the grounds of appeal, by misapprehending the legal doctrine on outdoor assembly, etc., nor by adversely affecting the conclusion of the judgment.

B. As to the allegation in the grounds of appeal that the act of removing tent constitutes legitimate performance of official duties

(1) The crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established only where a public official’s performance of official duties is legitimate. Here, “legal performance of official duties” refers to not only where the act belongs to the abstract authority of the public official, but also where the act satisfies the legal requirements and methods for specific performance of official duties. Thus, even if the act of assault or intimidation against the public official performing an act of lacking legality, it cannot be deemed that the crime of obstruction of performance of official duties is established (see Supreme Court Decisions 2004Do4731, Oct. 28, 2005; 2011Do7259, Mar. 14, 2013, etc.). In addition, whether a public official’s performance of official duties is legitimate should be determined objectively and reasonably based on the specific situation at the time of the act (see Supreme Court Decision 2011Do4763, Aug. 23, 2013).

On the other hand, a road management agency has comprehensive management rights to ensure that roads can function as roads by installing roads and maintaining their existence and providing them for general traffic. Such road management rights include not only the maintenance and management of roads, facilities, etc. so as to be suitable for the function thereof, but also the authority to prohibit or refrain from performing acts that interfere with the function of roads to the extent that they are reasonable and reasonable as acts for road management. However, according to the former Road Act (amended by Act No. 10156, Mar. 22, 2010; hereinafter the same), any person is not prohibited from damaging roads without justifiable grounds, piling up obstacles on roads, and other acts that interfere with the structure of roads or traffic (Article 45). Thus, barring special circumstances, preventing a person from doing so based on the road management rights against a person who commits such prohibited acts falls under justifiable execution of duties (Article 45).

On the other hand, a general national highway in a zone under the jurisdiction of the Si shall be a management agency (Article 20(2) and (1)1 of the former Road Act and Article 10(1) of the same Act), and a sidewalk installed on a road shall fall under the constituent part of the road (Article 16(1) of the former Rules on Standards for Structures and Facilities of Roads before wholly amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 101 on February 19, 2009).

(2) The reasoning of the judgment below and the evidence adopted by the court below are as follows: ① in the process of the Gyeonggi-do Council from May 2008 to the enactment of the Gyeonggi-do Ordinance on the Promotion of the Transportation Convenience of Mobility Disadvantaged, the organization “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Joint Association” did not reflect the requirements of the disabled in the above Ordinance, and the organization held a press conference and assembly with the opposing contents at the Gyeonggi-do office and the Gyeonggi-do Council, Gyeonggi-do Council, on several occasions; ② Defendant 3, around 18:50 on December 23, 2008, at the sidewalk of the road, which is a general national highway adjacent to the Dong-dong of Pyeongtaek-si, Pyeongtaek-si, which was located adjacent to △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△○, which was installed to prevent the installation of a new plastic pole.

Examining these facts in light of the above legal principles, the act of preventing public officials belonging to the road management agency from preventing them from performing the act of prohibited acts stipulated in Article 45 of the Road Act, such as installation of a tent on a sidewalk and causing interference with traffic, etc. for the purpose of road management and preventing them from completing the installation of facilities, etc., without justifiable grounds, falls under the scope of exercise of comprehensive road management rights. Accordingly, the above defendant's act of assaulting a public official performing public duties based on road management rights constitutes obstruction of the performance of official duties.

On the other hand, Supreme Court Decision 2008Do8214 Decided December 11, 2008, which was invoked by the court below, held that the removal of a tent by a public official, who failed to meet the requirements for vicarious administrative execution, cannot be deemed a lawful performance of official duties in a situation where a tent is already installed and occupies a road without permission for a considerable period of time, and thus, it is inappropriate to apply it as it is, since the case is different from the case of this case where the actual control of a road was not formed while a tent is being installed.

(3) Nevertheless, the court below presumed that the act of preventing the installation of a tent by the public officials of the Pyeongtaek-si Office was only based on Article 65 (1) of the Road Act, which is a provision of the Act on Administrative Vicarious Execution, etc.

(4) As above, there exists a ground to reverse the obstruction of performance of official duties among the facts charged in the instant case against Defendant 3, and each of the facts charged as to the violation of the Assembly and Demonstration Act and general traffic obstruction following the non-reported assembly, which the court below found Defendant 3 guilty, should be sentenced to a single punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act. As such, the part of the judgment below against the

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 3 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's appeal against Defendant 1 and 2 is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)