[1] The purpose of Article 65 (1) of the Road Act, which provides special provisions for administrative vicarious execution, and the scope of its application

[2] The case affirming the judgment below which held that the crime of obstruction of performance of special duties is not established even if the defendants assault and threatened public officials against the public officials who conduct removal substitute execution of the tent installed without permission without going through the guidance prescribed by the Administrative Vicarious Execution Act and the notification procedure under the vicarious execution warrant in the Seoul square, which is the downtown square

[1] Article 65(1) of the Road Act provides that "a road management agency may take necessary measures, such as removal of things placed on the road without following the procedure, in cases where it is difficult to achieve its purpose in accordance with the procedure under Article 3(1) and (2) of the Administrative Vicarious Execution Act because the road management agency repeatedly and habitually occupies and uses roads or it is necessary to implement roads promptly." The purport of the above provision is to recognize special cases concerning vicarious execution under Article 3(1) and (2) of the Administrative Vicarious Execution Act so that a road management agency may take more active and prompt action against the same act as the repeated and habitual occupation and use of roads for the purpose of preventing traffic accidents and ensuring smooth flow of road traffic. Therefore, the above provision applies only to the case of unlawful occupation and use of roads listed in Article 8 of the Road Act, which are provided for general traffic, and it cannot be said that it is applied to a road to the case where it is classified under the Road Act and is subject to the application of the Road Act on the ground that it has land category.

[2] The case affirming the judgment below which acquitted the defendants on the ground that the removal of the removal of the removal of the removal of the tent installed without permission by public officials of the Seoul Metropolitan Government Office and the Jung-gu Office started the removal of the removal of the tent installed without permission without going through the guidance and vicarious execution procedure as prescribed by the Administrative Vicarious Execution Act, and the members of the National Countermeasure Council against the Full Import of U.S. Beef Risk Cow Disease, including the defendants, interfered with physical fighting or the removal of the tent, although the above Seoul square is a road on the public register, its land category cannot be deemed as a road under the Road Act to which the special provisions on the use and management of the Administrative Vicarious Execution under Article 65 (1) of the Road Act apply, since the above removal of the removal of the removal of the above square did not meet the legal requirements and methods concerning the specific performance of duties, and therefore, the defendants' assaulted against the above public officials and intimidation did not constitute a special obstruction of performance of official duties even if they were assaulted and threatened.

[1] Articles 8 and 65(1) of the Road Act, Article 3(1) and (2) of the Administrative Vicarious Execution Act / [2] Articles 136 and 14(1) of the Criminal Act, Articles 8 and 65(1) of the Road Act, Article 3(1) and (2) of the Administrative Vicarious Execution Act

[1] [2] Supreme Court Decision 2008Do8214 Decided December 11, 2008 / [2] Supreme Court Decision 2004Do4731 Decided October 28, 2005, Supreme Court Decision 2010Do8591 Decided October 14, 2010 (Gong2010Ha, 2132)

Defendant 1 and seven others

Prosecutor

Law Firm Roex, Attorney Lee Hun-sik

Seoul Central District Court Decision 2009No2511 Decided October 8, 2009

The appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 65(1) of the Road Act provides that "a road management agency may take necessary measures, such as removal of things placed on the road, if it is difficult to achieve its purpose in accordance with the procedure under Article 3(1) and (2) of the Administrative Vicarious Execution Act because the road management agency repeatedly and habitually occupies and uses roads or it is necessary to implement roads promptly." The purpose of the above provision is to allow a road management agency to take more active and prompt measures against the same act as the repeated and repeated illegal occupation and use of roads for the purpose of preventing traffic accidents and ensuring smooth flow of road traffic, and to recognize the special cases of administrative vicarious execution, which are prescribed in Article 3(1) and (2) of the Administrative Vicarious Execution Act, so that the notification procedure of a warrant for vicarious execution may be omitted (see Supreme Court Decision 2008Do8214, Dec. 11, 2008). Therefore, the above provision merely applies to the case of illegal occupation and use of roads listed in Article 8 of the Road Act, not to the road land category under the Road Act.

According to the reasoning of the judgment below and the record, although the Seoul plaza is classified into a road on the public register, and is used as a space for supporting citizens' healthy leisure and cultural activities by creating a plaza environment so that citizens can freely walk, it is managed by the Seoul Metropolitan Government Ordinance on the Use and Management of Seoul plaza. However, public officials of the Seoul Metropolitan Government Office and Jung-gu Office started the execution of the removal counter-execution of this case without going through the guidance prescribed by the Administrative Vicarious Execution Act and the notification procedure by the vicarious execution warrant. Accordingly, the members of the "National Countermeasure Committee against Import of the U.S. Beef U.S. Beef risk Co., Ltd." including the Defendants can be seen as interfering with the execution of the removal counter-execution of this case.

According to the above legal principles and facts, the Seoul square in this case cannot be deemed to be a road under the Road Act to which the special provisions for vicarious administrative execution under Article 65 (1) of the Road Act apply. Thus, the execution of the removal counter execution in this case, which public officials of the Seoul Metropolitan Government Office and Jung-gu Office did not meet the legal requirements and methods for specific execution of their duties, without going through the notification procedures by the guidance and vicarious execution warrant. Therefore, even if the defendants used violence or intimidation against the public officials performing the removal counter execution duties in this case, the special obstruction of performance of official duties is not established.

In the same purport, the court below was just in finding the Defendants not guilty of the facts charged in this case, and there was no error in the misapprehension of legal principles as to Article 65 (1) of the Road Act as alleged in the grounds of

2. As to the grounds of appeal Nos. 2 and 3

The court below held that the removal of this case was unlawful since the removal of this case was made based on the mere violation of the duty of omission, on the ground that there was no evidence to acknowledge that the removal of this case was prior to the order, since the Seoul Special Metropolitan City Mayor, the management agency, ordered the organization belonging to the countermeasures council, to take necessary measures based on Article 83 of the Road Act, thereby converting the violation of the duty of omission under Article 45 of the Road Act to the alternative duty of act.

As seen earlier, as long as the principal judgment of the lower court is justifiable, even if the lower court erred in its as otherwise alleged in the grounds of appeal, it does not affect the conclusion of the judgment. This part of the grounds of appeal is rejected without need to further examine.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)