A. The meaning of performance of official duties in the crime of obstruction of performance of official duties

(b) The case reversing the judgment of the court below which found the defendant guilty on the ground that there was insufficient deliberation on the legality of the police officer's act of performing his duties in relation to the case of assaulting a traffic control police officer

A. The crime of obstruction of performance of official duties is established only when a public official’s performance of official duties is legitimate, and the act is not only within the abstract authority of the public official, but also meets the legal requirements and methods for the specific performance of official duties. Thus, even if a public official resists a public official performing an act lacking such legitimacy, the act cannot be viewed as the crime of obstruction of performance of official duties, regardless of whether he/she is liable for the crime of assault, etc. in cases where the act of resistance entails violence.

B. The case reversing the judgment below which did not examine the legality of the police officer's act of performing his duties, on the ground that the defendant resisted against the police officer's intent that the defendant's act of assaulting the police officer by failing to comply with the request of the police officer to present his driver's license, but if the defendant did not assault or threaten the police officer first, the defendant's right to force the police officer to proceed to the traffic call against the police officer's will is not a police officer. Thus, since the defendant's act of assaulting the police officer's license does not constitute the crime of obstruction of performance of official duties, since the defendant's act of assaulting the police officer's license does not constitute the crime of obstruction of performance of official duties.

(b)Paragraph 1 of Article 136 of the Criminal Code;

(a) Supreme Court Decision 75Do3779 delivered on March 9, 1976 (Gong1976,9067) (Gong1991, 1679) 91Do453 delivered on May 10, 1991 (Gong1991, 1679) 91Do1314 delivered on September 24, 1991 (Gong191,2642);

Defendant

Defendant

Seoul Criminal Court Decision 91No4094 delivered on October 8, 1991

The judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Criminal Court.

We examine the Defendant’s grounds of appeal.

1. The crime of obstruction of performance of official duties under Article 136 of the Criminal Code is established only when the execution of official duties is legitimate, and "legal performance of official duties" refers to not only the abstract authority of a public official, but also the legal requirements and methods for a specific performance of official duties. Thus, even if a public official resists a public official performing an act lacking legitimacy, it cannot be viewed as a crime of obstruction of performance of official duties, regardless of whether the act of resistance entails violence.

2. The summary of the facts charged in this case against the defendant is that the defendant, who is a taxi driver on April 10, 1991, stops a taxi in front of the bus stops in the sericultural subway station, and takes passengers on board the bus stops in front of the bus stops, and takes control over the non-indicted who is requested to present his/her license, and interfere with the traffic control of the above competition by committing assault, such as sprinking down his/her face, sprinking down his/her flabing, spinging his/her flab, spinginging his/her flab, etc., and obstructing his/her execution of duties. The court below affirmed the judgment of the first instance court convicting the above facts charged.

3. However, according to the record, the defendant argued that the non-party's act of performance of duty can not be deemed a legitimate performance of duty by the police officer, in case where the non-party wants to take a breath because the non-party takes a bath while presenting his license at the time of the police investigation, and the defendant spits spite and spits down his breath by resisting the defendant, by resisting the defendant. Thus, if the non-party wants to take a breath on the ground that he refuses to comply with the request of the driver's license and makes a resistance as alleged in the above defendant, the act of performance of duty cannot be deemed a legitimate performance of duty by the police officer ( even under the provisions of Article 3 (2) and (4) of the Act on the Performance of Duties by Police Officers, the person can refuse the request of accompanying the police officer, and the police officer is required to notify the defendant of the freedom of refusal of accompanying the police officer

Of course, it is wrong that the defendant did not respond properly to the police officer's request for presentation of traffic control. However, if the defendant did not use violence or intimidation first against the police officer, the police officer's right to proceed with traffic call against the police officer's will is not a police officer, so the defendant's right to proceed with traffic call against his will is not a police officer. Thus, even if the defendant committed violence, such as flabing the flab, etc. of the above non-indicted, from among those resisting such forced behavior, the crime of obstruction of performance of official duties is not established.

However, according to the records, although the non-indicted spits the face of the non-indicted 1 in the police and the prosecutor's office, the non-indicted 1 stated that the non-indicted 1 expressed that the non-indicted 1 would take a spit in the face of the non-indicted 1, because the non-indicted 1 would take a spit in the face of the non-indicted 1, and that the non-indicted 1 would take a spit in the body of the non-indicted 1, 2009. However, the defendant takes a spit in the face of the police officer because the defendant takes a spit in the body of the non-indicted 1, 2009. However, according to the records, the non-indicted 1, 2009. The non-indicted 1, 2009. The non-indicted 1, 2009. The non-indicted 1, 2009.

The court below should have examined more closely whether the act of the non-indicted as a legitimate execution of duty against the non-indicted. In this regard, the court below erred in the misapprehension of legal principles and the incomplete hearing, and there is a reason to discuss.

4. Therefore, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Man-man (Presiding Justice)