Whether an act causing a sound in the course of an assembly or demonstration requiring criticism or correction of the performance of public official's duties constitutes an assault in the crime of obstruction of performance of official duties (affirmative with qualification) and the criteria for such determination

In view of the fact that citizens’ sound criticism and supervision over the performance of official duties in a democratic society should be permitted as widely as possible, the mere fact that considerable noises have occurred temporarily in the process of an assembly or demonstration demanding criticism or correction of the performance of official duties does not constitute assault by sound in the crime of obstruction of performance of official duties. However, if a sound was used with the intent to inflict pain on the other party beyond reasonable scope, it may be recognized as assault. In specific circumstances, whether it constitutes assault by sound in the crime of obstruction of performance of official duties should be determined by comprehensively taking into account the size and height of sound, the duration and type of sound, the intent of the person who committed the occurrence of the sound, the distance between the person who committed the occurrence of the sound and the public official performing his/her duties, and the surrounding circumstances at the time of the occurrence of the sound.

Article 136 of the Criminal Act

Supreme Court Decision 98Do662 delivered on May 12, 1998 (Gong1998Sang, 1689) Supreme Court Decision 2000Do5716 Delivered on January 10, 2003 (Gong2003Sang, 654)

Defendant 1 and two others

Defendant 1, 3, and Prosecutor

Seoul Western District Court Decision 2007No54 decided April 24, 2007

The part of the lower judgment against Defendant 1 and 2 is reversed, and that part of the case is remanded to the Seoul Western District Court Panel Division. Defendant 3’s appeal is dismissed.

We examine the grounds of appeal.

1. As to the prosecutor's grounds of appeal

The crime of obstruction of performance of official duties is established by assault or intimidation against a public official performing his duties. Here, assault includes not only the direct exercise of tangible power but also the act of indirectly exercising tangible power against a public official (see Supreme Court Decision 98Do662 delivered on May 12, 1998). An act of causing physical and mental pain by directly stimulating the other party’s hearing organ with sound can also constitute violence as an exercise of tangible power (see Supreme Court Decision 2000Do5716 delivered on January 10, 2003).

However, in a democratic society, citizens' sound criticism and surveillance about the performance of official duties should be permitted to the extent widely as possible, it cannot be deemed that there was an assault due to a sound in the crime of obstruction of performance of official duties solely on the ground that considerable noise occurred temporarily in the process of an assembly or demonstration demanding criticism or correction, etc. of the public official's performance of duties. However, if a sound is used with the intent to inflict pain on the other party beyond a reasonable scope as a means of communication, it can be recognized as an assault. In specific circumstances, whether it constitutes an assault due to a sound in the crime of obstruction of performance of official duties should be determined by comprehensively taking into account the size and height of sound, the continuance time and type of sound, the intent of the person who committed the occurrence of the sound, the distance between the sound producer and the public official performing his/her duties, and surrounding circumstances at the time of occurrence of the

However, under the premise that the act of sound occurrence alone cannot be an assault in the crime of obstruction of the performance of official duties, the court below acquitted the above Defendants of the primary charges of obstruction of the performance of official duties. In so doing, the court below erred by misapprehending the legal principles on assault in the crime of obstruction of the performance of official duties and thereby affecting the conclusion of the judgment. The prosecutor's ground of appeal pointing this out

2. As to Defendant 1 and 3’s grounds of appeal

According to the provisions of Article 383 of the Criminal Procedure Act, the appeal against the judgment of the court below can be made only when there are reasons stipulated in the subparagraphs of Article 383 of the Criminal Procedure Act in the judgment below. The defendant's assertion that the person responsible for the issue of removal of 00 Dong 5-dong 5 shall guarantee the defendants' moving into the rental housing as the ○○○ Office and shall return the defendants' reports and properties destroyed during the process of compulsory removal by the redevelopment and rearrangement Association and the construction company, is not a legitimate ground for appeal, since it does not fall under any of the reasons stipulated in the subparagraphs of Article 383 of the Criminal Procedure Act.

3. Conclusion

Therefore, the part of the judgment of the court below as to Defendant 1 and 2's primary and preparatory facts as to the crime committed on September 9, 2005 and October 24, 2005 should be reversed. The judgment of the court below on the ground that the remaining crimes in a substantive concurrent relationship with the preparatory facts charged as guilty constitute concurrent crimes as provided in the former part of Article 37 of the Criminal Act, and as to Defendant 1, one sentence shall be imposed as to Defendant 2, and the sentence shall be imposed as to Defendant 2, and since the sentence shall be suspended, the part as to Defendant 1 and 2 of the judgment of the court below as to Defendant 1 and 2 shall be reversed and remanded to the court below for a new trial and determination, and the appeal by Defendant 3 shall be dismissed and it is so decided as per Disposition by the assent of all participating

Justices Jeon Soo-ahn (Presiding Justice)