[1] The purpose of Article 54-7 (1) of the former Road Act, which is a special provision on the application of the provision for administrative vicarious execution, and whether the case satisfies the general requirements for administrative vicarious execution (affirmative)

[2] The case holding that it constitutes self-defense where an act of resistance to public officials who control the things placed on the street without issuing only the pre-announcement of maintenance lacking legal requirements and methods does not constitute the crime of obstruction of performance of official duties, and thereby causing injury in the process constitutes self-defense

[1] The purpose of Article 54-7 (1) of the former Road Act (amended by Act No. 8976 of Mar. 21, 2008), which is a special provision on the application of administrative vicarious execution, is to allow the road management agency to omit the procedure of notification of a vicarious execution order or a warrant for vicarious execution, which is prescribed by the Administrative Vicarious Execution Act, for the prevention of traffic accidents and smooth road traffic flow. Thus, in order to enable the road management agency to take more active and prompt action against the same act as illegal occupancy and use of roads repeatedly and habitually, the procedure of notification of the vicarious execution order is to be omitted. Accordingly, the necessary measure taken by the road management agency is still an administrative vicarious execution as prescribed by the Administrative Vicarious Execution Act. In order to carry out such vicarious execution, a violation of the duty of alternative action by the administrative agency directly ordered by the Act or by the law must be committed,

[2] The case holding that it constitutes self-defense where an act of resistance to public officials who control the things placed on the street without issuing only the pre-announcement of maintenance lacking legal requirements and methods does not constitute the crime of obstruction of performance of official duties, and thereby causing injury in the process constitutes self-defense

[1] Article 54-7 (1) (see current Article 65 (1)) of the former Road Act (amended by Act No. 8976 of March 21, 2008) / [2] Articles 136 and 257 (1) of the Criminal Act, Article 54-7 (1) (see current Article 65 (1)), and Article 74 (see current Article 83 (1)) of the former Road Act (amended by Act No. 8976 of March 21, 2008)

[1] Supreme Court Decision 2008Do8214 Decided December 11, 2008

Defendant 1 and two others

South Maritime Affairs

Law Firm Jeong-man et al.

Defendant 3 shall be punished by a fine of KRW 2,000,000.

When Defendant 3 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Defendant 1 and 2 are not guilty.

The summary of this judgment against the defendant 1 and 2 shall be announced publicly.

Defendant 3, who was working as a disaster management personnel and a public interest personnel, was injured by the victim Defendant 2, who was under the control of the road on the road in front of the Gangseo-gu Busan Metropolitan City ○○○○○ Store on July 19, 2007, and was under the control of the road on the road in front of the old-gu Busan Metropolitan City ○○○ Hospital, and was under the control of the road on the road in front of the old-gu ○○○ branch, and was under the control of the road in a 56-day manner.

1. Partial statement of the defendant;

1. Defendant 2’s legal statement;

1. A written diagnosis of injury;

1. Article applicable to criminal facts;

Article 257(1) of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Summary of the facts charged against Defendant 1 and 2

Of the facts charged in this case, the summary of the charge against Defendant 1 and 2 is as follows: “Around July 19, 2007, Defendant 1 and 2 conspired with each other on the road in front of Defendant 1’s ○○○○○ store operated in the Busan Sleep-gu, Busan, with Defendant 1, Defendant 3, etc., who was under the jurisdiction of the Organization of the Organization and Organization of the Organization and the public interest service personnel, and obstructed Nonindicted 1’s execution of duties concerning the control of criminal acts by assaulting Nonindicted 1, 2, such as smuggling and flabing the flab, etc., and thereby obstructing Nonindicted 1’s execution of duties; ② at the same time and at the same place, Defendant 2 continued to live in the flab of Defendant 3, a public interest service personnel at the same time and at the same time and at the same place, the wheels with the flab, etc., to regulate Defendant 3’s criminal acts and interfere with Defendant 2’s performance of duties.”

2. Determination:

However, according to the records, administrative vicarious execution pursuant to Article 54-7 of the former Road Act (wholly amended by Act No. 8976 of March 21, 2008, hereinafter the same) is clear.

The crime of obstruction of performance of official duties under Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. Here, legitimate performance of official duties refers to not only where the act belongs to the abstract authority of a public official, but also where the act satisfies the legal requirements and methods concerning specific performance of official duties. Thus, the crime of obstruction of performance of official duties is not established on the ground that the act of a public official committed assault or intimidation against a public official performing an act lacking such legitimacy. In addition, if the act of a public official deviates from legitimate performance of official duties, the act of resisting against the act constitutes the element of the crime of obstruction of official duties, even if it falls under the element of the crime of intimidation, which constitutes legitimate self-defense

Article 54-7 (1) of the former Road Act, which is a law applicable to the execution of public duties of this case, provides that "If a road management agency occupies and uses a road repeatedly or habitually, or if it is difficult to achieve its purpose according to the procedure under the provisions of Article 3 (1) and (2) of the Administrative Vicarious Execution Act because of the need for rapid implementation, it may take necessary measures, such as removal of things placed on the road without following the procedure concerned." The purport of this provision is to allow the road management agency to omit the procedure of notification of vicarious execution or vicarious execution warrant so that it can cope more actively and promptly with the act such as repeated and habitual illegal occupation of roads for the prevention of traffic accidents and smooth flow of road traffic. Thus, the necessary measure taken by the road management agency is still an administrative vicarious execution as provided by the Administrative Vicarious Execution Act. For such vicarious execution, a violation of the duty to act directly or by the administrative agency pursuant to the provisions of the Act and subordinate statutes must be done, and vicarious execution on the object of a simple omission is not permitted (see, e.g., Supreme Court Decision 2008Do18.

The case returned to the case, and the violation of the duty of omission under Article 40 or 47 of the former Road Act alone cannot be invoked measures under Article 54-7 (1) of the former Road Act, and the violation of the duty of omission should be converted into the duty of alternative act by ordering the removal or removal of the goods under Article 74 of the former Road Act. According to the records, Non-Indicted 1 stated that the above defendants' voluntary removal was ordered on July 16, 2007, and Non-Indicted 1 stated in the investigation agency that the above period was the same day, and Non-Indicted 3 stated in the court that it was equivalent to 2-3 days before the enforcement date, and it cannot be viewed that the above defendants' voluntary removal of the goods did not constitute legitimate order of removal under Article 74 of the former Road Act. Thus, it cannot be viewed that the above order of removal under Article 74 of the former Road Act did not constitute legitimate order of removal under Article 74 of the former Road Act.

Thus, the above facts charged against Defendant 1 and 2 constitute a case where there is no proof of criminal facts, and thus, they are acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Enforcement Decree of the Judge’s Interest