In the crime of obstruction of performance of official duties, the standard of determining the legality of the execution of official duties, and whether the same applies to the case of determining the legality of the arrest of flagrant offenders

The crime of obstruction of performance of official duties is premised on a legitimate performance of official duties by public officials. Whether performance of official duties by public officials belonging to abstract authority is legitimate shall be determined objectively and reasonably based on the specific situation at the time of the act, and shall not be determined based on pure objective criteria ex post facto. Likewise, the legality of the arrest of flagrant offenders shall be objectively determined based on the specific situation at the time of arrest, and it shall not be based on whether

Article 136 of the Criminal Act, Articles 211 and 212 of the Criminal Procedure Act

Supreme Court Decision 91Do453 Decided May 10, 1991 (Gong1991, 1678) Supreme Court Decision 201Do3682 Decided May 26, 201 (Gong2011Ha, 1367) Supreme Court Decision 2010Do1281 Decided February 15, 2013

Defendant

Prosecutor

Seoul Central District Court Decision 2010No4904 Decided April 7, 2011

The part of the judgment of the court below concerning the assault, obstruction of performance of official duties, and the crime of injury is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. The prosecutor'

We examine the grounds of appeal.

1. As to interference with business

A. “Business” subject to the protection of the crime of interference with business under the Criminal Act refers to a business or business engaged in both an occupation and continuously for a certain period of time and serves as the basis for social activities. Although a contract or administrative act, etc., which forms the basis of such business, is not necessarily lawful, it must be worth protecting from infringement by other person’s unlawful act. Therefore, in order to recognize the assignee’s interference with business in the event of a dispute over the transfer or acquisition of a certain business, the existence of an agreement on transfer or acquisition of the pertinent business should be recognized, as well as to the extent that the agreement is actually and objectively made after the transfer of the pertinent business to the actual transferee, and thus, it can be deemed as the basis for the transferee’s social activity, which is worth protecting from infringement by another’s illegal act (see Supreme Court Decision 2006Do3687, Aug. 23, 2007).

B. The summary of this part of the facts charged is as follows: “The Defendant interfered with the victim’s restaurant business by force by force, on the grounds that the victim Nonindicted Party 1’s “○○○○○” restaurant (hereinafter “the head office of the instant restaurant”) in Gangnam-gu Seoul Metropolitan Government (number omitted)’s management from April 17, 2009 to 20:00, and that the victim was unable to use the credit card used by the Defendant by stopping the credit card, which was used by the said victim.” The Defendant 2 of the instant restaurant is blick up with two gates and two gates in the head office of the instant restaurant, and the Defendant 2 of the instant restaurant.” The Defendant 2 of this part of the facts charged is as follows.

C. According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which acquitted the defendant on this part of the facts charged, on the ground that, under dispute between the defendant and the victim non-indicted 1 surrounding the existence and validity of the agreement on the transfer and acquisition of the right to operate the head office of the instant restaurant, the above victim unilaterally changed the business-use restaurant account and the cash card password by asserting that he is a legitimate transferee and carried out the restaurant business independently without excluding the defendant, it is difficult to deem that the above victim started to engage in a normal business as the principal office of the instant restaurant, or that his business was worth protecting the defendant in relation to the existing business owner. The right to operate the head office of the instant restaurant of this case was originally owned by the defendant, but it is not recognized that there was an agreement between the defendant and the victim on the transfer and acquisition of the right to operate the head office of the instant restaurant of this case.

D. Examining the above legal principles and records, the above determination by the court below is just, and there is no error of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or of misapprehending the legal principles on the business interference.

2. As to obstruction of performance of official duties, injury, or assault

A. The crime of obstruction of performance of official duties is a premise for a legitimate performance of official duties by a public official. Whether the performance of official duties by a public official belonging to an abstract authority is legitimate should be determined objectively and reasonably based on the specific situation at the time of the act, and it should not be determined after pure objective criteria (see, e.g., Supreme Court Decision 91Do453, May 10, 191). Likewise, the legality of the arrest of a flagrant offender should be objectively determined based on the specific situation at the time of arrest, and should not be determined after the fact.

B. The summary of this part of the facts charged is as follows: (a) around 20:00 on April 17, 2009, the Defendant assaulted the victim of the vehicle from walking one time to walk with Nonindicted 2’s chests, wings, etc. of each victim Nonindicted 2, who was trying to help the police officers dispatched after receiving 112 reports at the head office of the instant restaurant, and at around 20:00 on the front of the head office of the instant restaurant; and (b) Nonindicted 3, a slope belonging to the Gangnam Police Station Cheongnam Police Station, which was dispatched after receiving 112 reports, arrested the Defendant as a flagrant offender and was accompanied by carrying the Defendant into the patrol vehicle, at the lower end of the patrol, by inserting the face of the said Nonindicted 3, who tried to cause the Defendant, and by asking the left side of the said Nonindicted 3, thereby obstructing the police officer’s legitimate arrest and obstructing the police officer’s execution of his duties.”

C. According to the reasoning of the lower judgment, the lower court determined that: (a) the police officers, at the time of the dispatch of the police officer, asked the victim Nonindicted Party 1 to hear the horses of the victim Nonindicted Party 1 and to accompany the defendant under suspicion of interference with business; (b) the Defendant refused to accompany, demanded the victim to confirm that the name of business registration was Nonindicted Party 1; (c) the Defendant refused to accompany, but attempted to arrest the defendant as an offender; (b) the police officer in charge received a report on the charge of interference with business of the defendant, who was dispatched to the head office of the instant restaurant even before the instant case; (c) both the victim Nonindicted Party 3 and the husband of the said Nonindicted Party 1 and the Defendant, the husband of the said Nonindicted Party 2, who was the Defendant, were the head office of the instant restaurant; and (d) it appears that the Defendant had been aware that the Defendant had been operating the instant restaurant, and that the Defendant’s act was under dispute with the right to operate the head office of the instant case; and (c) the Defendant’s act did not constitute an unlawful arrest of the victim in the Defendant’s body.

D. However, we cannot agree with the above determination by the court below for the following reasons.

According to the evidence adopted by the court below, ① Nonindicted 4, a police officer, was called to the scene immediately upon receipt of a report that the Defendant was suffering from disturbance at the head office of the instant restaurant, and the victim Nonindicted 1 and the employees of the restaurant were boomed outside the restaurant, and when entering the restaurant, the Defendant temporarily suspended the disturbance and was seated in the place, and the above Nonindicted 1, who asked the Defendant whether the Defendant interfered with the business, became the Defendant. ② The above Nonindicted 4 asked the Defendant to explain the situation, ② the Defendant was the president, and asked the Defendant to do so with his business interference, but the above Nonindicted 4 was not the president, on the business registration certificate of the above Nonindicted 4, and the Defendant was able to see the above part of the Defendant’s 2 string, she was able to walk out and walk the Defendant’s 4 string, etc., and she was under the influence of the Defendant’s arrest, and she was under the influence of the Defendant’s 4 string.

In light of these facts in light of the above legal principles, although the defendant's act of disturbance, such as noise in a restaurant or harming a scam, does not constitute an element for the crime of interference with business, and thus, even if the defendant was found not guilty ex post, there is sufficient reason to recognize the defendant as a flagrant offender in the crime of interference with business, since the defendant refused the police officer's demand to explain the situation or scam in a scam in the outside, and scam in the presence of the police officer, and the scambling the scam in the presence of the police officer, and there is sufficient reason to recognize the defendant as a flagrant offender in the crime of interference with business, since the police officer's act of arresting the defendant is deemed a legitimate performance of official duties, and the defendant's act of assaulting the victims and injuring the victims during that process constitutes the crime of obstruction of performance of official duties.

3. Therefore, the part of the judgment of the court below concerning the crime of assault, obstruction of performance of official duties, and injury is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating

Justices Park Poe-young (Presiding Justice)