[1] Whether the crime of obstruction of performance of official duties is established in a case where violence or intimidation is committed against a public official performing an act of duties lacking legality (negative)

[2] Whether Article 83 of the former Public Property and Commodity Management Act does not permit the vicarious execution of a duty, not a "alternative duty to act" (negative)

[3] The case affirming the judgment below which acknowledged the crime of obstruction of performance of special duties against the Defendants in case where the branches of the Korean Public Officials' Union were arbitrarily used office facilities of the Gun government office, which were originally used for the operation of the public official's work council, and the head of local government performed vicarious execution pursuant to the Administrative Vicarious Execution Act after voluntary closure was requested, and the Defendants and the public officials of the above branches committed assault against the public officials who were performing the above execution

[4] The meaning of "collective action for labor campaign or other activities other than official duties" prohibited by Article 58 (1) of the former Local Public Officials Act

[5] In a case where Defendant A and public officials belonging to the branches of the Korean Public Officials' Union committed a lawful administrative vicarious execution by a local government on the grounds of “family organization”, the case affirming the judgment below which acknowledged Defendant A’s violation of the same Act on the grounds that the above act constitutes “labor movement or other collective action for activities other than official duties” prohibited under Article 58(1) of the former Local Public Officials Act

[1] The crime of obstruction of the performance of official duties under Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. Even if a public official commits violence or intimidation against a public official performing a duty lacking legitimacy, it cannot be said that such act constitutes the crime of obstruction of the performance of official duties. In this case, “legal performance of official duties” refers to a case where such act is not only within the abstract authority of a public official, but also satisfies the legal requirements and methods for specific performance of official duties.

[2] Article 83 of the former Public Property and Commodity Management Act (amended by Act No. 1006, Feb. 4, 2010) provides that “When a person occupies public property or installs facilities therefor without justifiable grounds, he/she may remove or take other necessary measures by applying mutatis mutandis the provisions of Articles 3 through 6 of the Administrative Vicarious Execution Act.” The above provision is merely the purport of establishing individual grounds for vicarious execution and, at the same time, applying mutatis mutandis only some of the requirements and procedures for vicarious execution under the Administrative Vicarious Execution Act. It does not purport to allow compulsory execution to other kinds of obligations that are not subject to vicarious execution, in principle, because they do not belong to the alternative duty to act.

[3] In a case where a branch office of the Korean Public Officials' Union was used arbitrarily as a Gun office facility, which was originally used for the operation of the public official's work council, and the head of a local government made an administrative vicarious execution pursuant to the Administrative Vicarious Execution Act after voluntary closure request, and the defendants such as the head of the branch office and the public officials of the above branch office set up violence against the public officials who were engaged in the above execution, the case affirming the judgment below which acknowledged the crime of special obstruction of performance of official duties on the grounds that the main purpose of the above administrative vicarious execution is to restore the functions of the Gun office by removing the articles of association within the office and closing the office in order to suspend the actual illegal use of the above office, since the main purpose of the above administrative vicarious execution is to restore the functions of the Gun office, it can be deemed that the whole target of the duty to remove the office, which is an alternative duty to act, which is the object of vicarious execution, and against this, the act of violence by the defendants

[4] Article 58(1) of the former Local Public Officials Act (amended by Act No. 9301 of Dec. 31, 2008) does not mean any collective act committed by public officials for any work other than public duties, but rather means any collective act committed by public officials for any work that does not belong to public duties. The legislative purport of Article 21(1) of the Constitution guaranteeing the freedom of speech, publication, assembly, and association, the legislative purport of the Local Public Officials Act and the Local Public Officials Act, the duty of good faith and duty of care under the Local Public Officials Act, etc. shall be construed as “collective act that may affect the duty of care for the purpose of violating the public interest.”

[5] In a case where Defendant A and public officials belonging to the branches of the Korean Public Officials' Union committed a lawful administrative vicarious execution by a local government during the annual leave on the grounds of "family organization", the case affirming the judgment below which acknowledged Defendant A's violation of the same Act on the grounds that the above act constitutes "collective activity for labor movement or activities other than official duties" prohibited under Article 58 (1) of the former Local Public Officials Act (amended by Act No. 9301 of Dec. 31, 2008)

[1] Article 136 of the Criminal Act / [2] Article 83 of the former Public Property and Commodity Management Act (Amended by Act No. 1006, Feb. 4, 2010; see Articles 83 (1) and (2) of the current Act); Article 3 of the Administrative Vicarious Execution Act / [3] Articles 30, 136 (1) and 144 (1) of the Criminal Act; Article 3 of the Administrative Vicarious Execution Act / [4] Articles 58 (1) and 82 of the former Local Public Officials Act (Amended by Act No. 9301, Dec. 31, 2008); Article 21 (1) of the Constitution / [5] Articles 58 (1) and 82 of the former Local Public Officials Act (Amended by Act No. 9301, Dec. 31, 2008)

[1] Supreme Court Decision 92Do506 delivered on May 22, 1992 (Gong1992, 2059) Supreme Court Decision 2004Do4731 Delivered on October 28, 2005, Supreme Court Decision 2007Do6088 Delivered on October 12, 2007 / [2] Supreme Court Decision 97Nu157 Delivered on October 23, 1998 (Gong198Ha, 2785) / [4] Supreme Court Decision 2004Do5035 Delivered on October 15, 2004 (Gong204Ha, 1904) (Gong207Do1044 Delivered on March 14, 2008)

Defendant 1 and two others

Defendants

Daejeon District Court Decision 2007No1181 Decided August 23, 2007

All appeals are dismissed.

The crime of obstruction of the performance of official duties under Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. Even if a public official commits assault or intimidation against a public official performing a lack of legitimacy, it cannot be subject to the crime of obstruction of the performance of official duties. The lawful performance of official duties refers to not only the act belongs to the abstract authority of the public official, but also the case meeting the legal requirements and methods for specific performance of official duties (see Supreme Court Decision 2004Do4731, Oct. 28, 2005). Further, Article 83 of the former Public Property and Commodity Management Act (amended by Act No. 1006, Feb. 4, 2010; hereinafter “Public Property Act”) provides that “When a public official occupies or installs a facility without justifiable cause, the provisions of Articles 3 through 6 of the Administrative Vicarious Execution Act shall apply mutatis mutandis to the removal of the official duties under Articles 97 and 97 of the same Act.” The purport of the above provision is that the provision does not apply mutatis mutandis to the individual vicarious execution duty.

According to the reasoning of the judgment of the court below and the evidence adopted by the court below, the office of this case, which was the object of the administrative vicarious execution of this case, was provided by the head of the ○○○○○, upon establishment of the work council of public officials belonging to the original ○○○○○○, for use in its operation. When public officials belonging to the above work council join the National Public Officials' Union (hereinafter "major labor union") as organizations other than the law and arbitrarily used it for the office of the above ○○○ military branch office, the head of the ○○○, who is the person in charge of the management in the above office's office's office's office's office's office's office's office's office's non-legal organization's actual illegal use of the office's office's non-legal organization's office's non-legal organization's office's non-legal organization's office's non-legal organization's voluntary closure request, after issuance of a letter of vicarious execution,

Examining the above circumstances and status of the use of the office of this case, the background of the implementation of vicarious administrative execution, the details of the instruction and vicarious execution warrant, and the details of the execution of vicarious administrative execution, etc., in light of the legal principles as seen earlier, it is difficult to view that the original use of the office of this case by the work council of 00 ○○ Gun as the public officials belonging thereto used the office facilities according to the allocation of the office in accordance with the right to manage the office of ○ ○ Gun Gun Gun Gun Gun Gun Gun , so it is difficult to view that the work council obtained independent possession of the office facilities. Accordingly, the annual use of the above office of the major labor-management ○

Therefore, the main purpose of the administrative vicarious execution of this case is to restore the function of the 00 military building by removing major labor union members kept in the office and closing the office in order to suspend the actual unlawful use of the office of major labor union members who are organizations other than the law. Thus, the administrative vicarious execution of this case is a legitimate execution of official duties as it targets the removal duty, which is the alternative duty of act, which is the object of vicarious execution, as a whole, as an object of the duty to remove the office. The act of violence, etc. committed by the public officials of the Defendants and the 00 military administration to which major labor union members belong, constitutes legitimate execution of official duties by means of collective or multiple force.

Meanwhile, Article 58(1) of the former Local Public Officials Act (amended by Act No. 9301 of Dec. 31, 2008) does not mean any collective act committed by public officials for any work that does not belong to public duties, but rather means any collective act committed by public officials. The legislative purport of Article 21(1) of the Constitution guaranteeing the freedom of speech, press, assembly and association, and the Local Public Officials Act, the duty of good faith and duty of care under the Local Public Officials Act, etc. should be interpreted as “collective act that affects the duty of care for the purpose against public interest” (see Supreme Court Decision 2007Do11044, Mar. 14, 2008). As seen earlier, the instant vicarious execution of official duties is legitimate execution of official duties, and thus, the act committed by Defendant 2 and 000 military employees who prevented such collective act by the former Public Officials Act, which violated the duty of care under the former Local Public Officials Act, thereby establishing a violation of the purpose of the former Local Public Officials Act.

Therefore, although the court below's measure of maintaining the judgment of the court of first instance which found the defendants guilty of all the facts charged in this case is somewhat insufficient, it is just in its conclusion, and there is no error in the misapprehension of legal principles as to vicarious administrative execution, obstruction of performance of official duties, and violation of the former Local Public Officials Act,

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

Justices Cha Han-sung (Presiding Justice)