Scope of public officials subject to protection for the crime of obstruction of performance of official duties

Even if a public official, who tried to remove a building by administrative vicarious execution without the procedure of an accusation under the Administrative Vicarious Execution Act, resisted by violence against the defendant, etc., the crime of obstruction of performance of official duties is not established.

Article 136 of the Criminal Act

Defendant 1 and four others

Prosecutor and Defendants

Seoul District Court (65 high 7606)

The prosecutor's appeal against the defendant, etc. and the defendant 1's appeal are all dismissed.

The reason for appeal by the prosecutor is that the crime of obstruction of performance of official duties is established when it appears to be a legitimate act in the process of performing official duties. Thus, the crime of obstruction of performance of official duties should be deemed to be established if the crime of obstruction of official duties was committed even if there was no guiding act in carrying out administrative vicarious execution. Nevertheless, the court below erred by misapprehending the above legal principles, thereby admitting that the defendant et al. conspired to remove unauthorized buildings according to the Administrative Vicarious Execution Act, thereby causing violence to public officials who carry out removal of unauthorized buildings pursuant to the Administrative Vicarious Execution Act, but did not follow the prescribed guidance procedure in the execution procedure, which affected the conclusion that the above obstruction of official duties is not a legitimate execution of official duties, and the sentencing of the defendant et al. is too excessive in light of the motive for the crime of obstruction of official duties. Accordingly, since the court below's sentencing of the defendant et al., which is the reason for appeal, the court below's order of obstruction of official duties cannot be accepted as a legitimate act of abuse of official duties and the records, it cannot be accepted without legitimate reasons for dismissal.

Judges Jeong-won (Presiding Judge)