Defendant 1 and one other

Prosecutor

Park Jong-chul, Lee In-bok (Court of Second Instance)

Attorney Maximum ice (the national election for the defendant)

Jeju District Court Decision 2012Gohap118 Decided October 18, 2012

The judgment of the court below is reversed.

Defendants are not guilty.

The summary of the judgment of innocence against the Defendants is published.

The gist of the grounds for appeal by the prosecutor is that the Jeju Viewing public official at the time of the instant case made a request for voluntary removal of the tent installed illegally and issued an order for restoration. This constitutes an order for removal, etc. under Article 83 subparagraph 1 of the Road Act, and thus, the duty of omission under Article 45 of the Road Act of the tent installers including the Defendants is converted into the duty of act as a substitute, and the execution of removal of the tent by the above public official constitutes legitimate execution of official duties under Article 65 of the Road Act. However, the court below acquitted the Defendants on the ground that the removal by the above public official was not legitimate execution of official duties. Thus, the court below erred in the misunderstanding of facts or misunderstanding of legal principles.

Before determining the grounds for appeal by the public prosecutor, the public prosecutor examined ex officio, and the public prosecutor applied for the amendment to a bill of amendment to the indictment, which changes the 11th and 14th of the facts charged in the instant case as follows. Since this court permitted this, the subject of the judgment against the Defendants was different, the judgment of the court below was no longer maintained.

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Therefore, the public officials belonging to the Jeju Viewing Construction and Transportation Bureau ordered the Defendants to voluntarily remove their body over several occasions on the grounds that the installation of a tent in India causes danger to pedestrian safety and risks to traffic flow, but the Defendants refused to comply with the above order. Accordingly, the above public officials attempted to remove the tent that the Defendants were trying to install on the Road Act, and the Defendants began to wear physical fighting with the public officials to stop this.

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, since the above grounds for ex officio reversal exist, and it is again decided as follows.

1. Summary of the facts charged in this case

Defendant 1 is the chairman of the Jeju-do branch office of the Jeju-do Federation of △△△△△△△△ Group, and Defendant 2 is the chairman of the Jeju-do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do. on April 11, 2012.

On October 25, 2011, at around 10:00, the Defendants attended the “Korea-U.S. Free Trade Agreement ratification,” which was held by the Jeju ○○○○○○○○ Association of Jeju Island and the △△△△△△△△△ Group, and attempted to install a tent by moving to a sidewalk in line with the sentiments of the Jeju Special Self-Governing Province Council, along with members of the farmers’ organizations, around 10:25 on the same day.

Therefore, the public officials belonging to the Jeju Viewing Construction and Transportation Bureau ordered the Defendants to voluntarily remove their body over several occasions on the grounds that the installation of a tent in India causes danger to pedestrian safety and risks to traffic flow, but the Defendants refused to comply with the above order. Accordingly, the above public officials attempted to remove the tent that the Defendants were trying to install on the Road Act, and the Defendants began to wear physical fighting with the public officials to stop this.

A. Defendant 1’s injury resulting from obstruction of performance of official duties

Defendant 1, around October 25, 201, around 10:37, at around 10:37, 201, she used a tent pipe (2 meters in length) for the installation of a tent, which is a dangerous object in India, at the Jeju Jeju Jeju Provincial Government Office, and took several times to the public officials to remove the tent installed illegally on the road. Nonindicted Party 1, who is a public official, was a public official in the construction of Jeju Viewing Transport Bureau and the construction of its affiliated public official, suffered approximately 3% of the upper part of the left upper part of the pipe.

As a result, Defendant 1 assaulted public officials who carry dangerous objects and remove a tent, thereby hindering the legitimate execution of duties of Nonindicted Party 1 and Jeju audience officials, and suffered from Nonindicted Party 1’s non-indicted 1’s non-indicted 1’s non-indicted 1’s speech on treatment days.

B. Defendant 2’s obstruction of performance of official duties

Defendant 2, around October 25, 201, at the same place as above on October 25, 2011, 10:35, the Jeju Viewing City, which was engaged in the removal of illegally installed tent, and Nonindicted 2, affiliated in the arms contract post, led Defendant 2 to her hand, and then, Defendant 2: (a) dumpeded her blap with blap.

As a result, Defendant 2 assaulted public officials who remove tent and interfered with the legitimate execution of their duties.

2. Determination

In the lower court’s argument as to the grounds of appeal, the prosecutor, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, the evidence alone presented by the prosecutor cannot be deemed lawful by meeting all the legal grounds, requirements, and procedures for the removal of tent at the time of the instant case. Therefore, even if the Defendants used violence or intimidation against public officials performing their duties of removal, it cannot be deemed that the crime of special obstruction of performance of official duties or the crime of obstruction of performance of official duties is established.

A. Although Jeju Viewing public officials at the time of the instant case made a verbal request for voluntary removal of a tent prior to the passage into the execution of removal of a tent, in order to view it as an order based on Article 83 subparagraph 1 of the Road Act, the request for voluntary removal was made by the management agency having the authority to dispose of the road under the Road Act, and pursuant to Articles 21 (1), 24, and 26 of the Administrative Procedures Act, the procedures and methods prescribed by the Administrative Procedures Act (see Articles 21 (1), 24, and 26 of the Administrative Procedures Act), an administrative agency must take prior notice prior to the disposition, take the disposition in writing, and notify the parties of the method of objection, etc. regarding the relevant disposition. However, there is no evidence supporting that the request made by Jeju Viewing public officials at the time of the instant case is a legitimate disposition under the Road Act or the Administrative Procedures Act.

B. Furthermore, in light of the fact that the Jeju Viewers’s public official, who participated in the removal and execution of the tent at the time of the instant case, stated consistently to the effect that the above removal and execution was based on Article 63 of the Road Act, and that it was not the removal and execution in accordance with the special case of the vicarious administrative execution stipulated in Article 65 of the Road Act, the public officials participating in the removal and execution of the tent at the time of the instant case were issued orders, such as removal based on Article 83 subparag. 1 of the Road Act, or there was no awareness that the administrative execution due to the nonperformance was conducted.

3. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of facts constituting an offense, it is judged not guilty under the latter part of Article 325 of the Criminal Procedure Act, and it is decided not to disclose the summary of the judgment in this case under Article 58 (2) of the Criminal Act.

Judges Sung Pung-sung (Presiding Judge)