[1] The meaning and standard of determining "legal performance of official duties" in the crime of obstruction of performance of official duties

[2] In a case where the Minister of the Interior and Safety notified each local government of public official service management guidelines for the integration of public official labor unions and the decision on whether to join a superior organization, and ordered Gap and other public officials under his jurisdiction to dispatch them to the Gu office to check cases of violation of service regulations, and the Defendants, a member of the organization, were prosecuted for interfering with Gap's execution of duties, the case affirming the judgment below holding that Gap's conduct of service inspection does not constitute an unfair labor practice as a legitimate performance of official duties

[1] Article 136 of the Criminal Act / [2] Articles 30 and 136(1) of the Criminal Act, Article 81 subparag. 4 of the former Trade Union and Labor Relations Adjustment Act (Amended by Act No. 9930, Jan. 1, 2010); Article 166(1) of the Local Autonomy Act

[1] Supreme Court Decision 2008Do4721 Decided April 28, 201, Supreme Court Decision 2010Do10305 Decided May 26, 2011

Defendant 1 and one other

Defendants

Law Firm Citizens, Attorneys Kim Ho-soo et al.

Seoul Eastern District Court Decision 2010No508 decided August 12, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. 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 is not only within the abstract authority of a public official, but also within the authority of a public official, and also must meet the requirements and methods as an act of official duties. Whether the performance of official duties of a public official is legitimate or not must be determined objectively and reasonably based on the specific situation at the time of the act (see Supreme Court Decision 2008Do4721, Apr. 28, 201, etc.).

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the Minister of Public Administration and Security notified each local government of the guidelines for service management to recommend the strengthening of guidance and supervision on the violation of the relevant Acts and subordinate statutes, such as the service regulations of public officials expected in relation to the integration of public officials' labor unions and the joining of superior organizations, and let the non-indicteds and public officials belonging to the Ministry of Public Administration and Security, including the non-indicteds, dispatch them to each local government to check whether there are cases of violation of the service regulations, and the non-indicteds discovered that the ballot box was installed in a place other than the Trade Union and Labor office while dispatched to Songpa-gu

The purpose of the Minister of Public Administration and Security setting the guidelines for the service management of public officials in relation to the total voting of this case is to prevent any violation of the regulations on service that may arise in the general voting of this case by an agency in charge of the affairs of service of public officials. Thus, it is reasonable to deem that the act of notifying the above guidelines to each local government constitutes the recommendation or guidance for the affairs of local governments under Article 166(1) of the Local Autonomy Act and falls under the act within the scope of the authority of the Minister of Public Administration and Security. Furthermore, it is reasonable to deem that the act of notifying each local government of the above guidelines constitutes an act within the scope of the authority of the Minister of Public Administration and Security in order to verify whether the matters recommended or directed to each local government are properly

Therefore, it can be seen that the Nonindicted Party’s act of inspecting this case according to the direction of the Minister of Public Administration and Security constitutes legitimate performance of official duties.

Although the reasoning of the lower court was inappropriate, it is justifiable in its conclusion to have determined that the instant checkup act was a legitimate performance of official duties within the scope of official authority. Therefore, the ground of appeal that the lower court erred by misapprehending the legal doctrine on the scope of authority of the Minister of Public Administration

2. Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act provides that an employee’s act of controlling or participating in the organization or operation of a trade union is unfair labor practices. The purpose of this provision is to restore a normal labor-management relationship by excluding and correcting acts that infringe the right to organize (see Supreme Court Decision 2007Du8881, Mar. 25, 2010, etc.).

However, as seen earlier, in light of the purport of preparing guidelines for service management of public officials in relation to the total voting of this case and informing each local government of such guidelines, the Minister of the Interior and Safety intends to prevent the violation of the situation, such as the service regulations that may arise in the total voting of this case, and the inspection of this case was conducted to verify and investigate whether the above service management guidelines are properly implemented, it is difficult to view the inspection of this case as an unfair labor practice that intends to control or change the organization or operation of the

Therefore, although the judgment of the court below that the inspection of this case did not constitute unfair labor practice is inadequate, it is just in its conclusion, and contrary to the allegations in the grounds of appeal, it did not err by misapprehending the legal principles as to the establishment of unfair labor practice.

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

Justices Lee Sang-hoon (Presiding Justice)