Acquittals for ‘Obstruction of Official Duties’ under Korean Law
The Big Picture
1. The Legal Premise
The offense of obstruction of official duties provided in Article 136 of the Criminal Act is established only where the public official’s execution of duties is lawful. Here, “lawful execution of duties” refers to a case in which the act not only falls within the public official’s abstract authority but also meets the legal requirements and methods for the concrete execution of duties; so even if one inflicts assault or intimidation in resistance to a public official performing an official act lacking such lawfulness, it cannot be dealt with as the offense of obstruction of official duties (Criminal Act, Article 136(1); Supreme Court, May 22, 1992, 92do506; Supreme Court, Apr. 28, 2011, 2007do7514).
In scholarship, on the systematic status of the “lawfulness of the execution of duties” requirement, three views are in opposition: (1) the element-of-the-offense view; (2) the unlawfulness-element view (the ground-excluding-unlawfulness view); and (3) the objective-condition-of-punishment view. The precedents take the position of the element-of-the-offense view, holding that “because the requirements for arrest of a flagrant offender were not met, it cannot be regarded as a lawful execution of duties, and so it does not satisfy the elements of the offense of obstruction of official duties.” Accordingly, resistance to an unlawful execution of duties results in acquittal by the negation of the elements.
Below, among recent lower-court judgments, cases in which acquittal of the offense of obstruction of official duties was rendered on the ground of unlawful execution of duties are introduced by type.
2. Acquittal Cases by Type
A. A case where the requirements for a police protective measure were not met
1) Changwon District Court, Nov. 17, 2023, 2023godan1798
Facts: Police officers, having received a transferred 112 report that “my daughter is out of contact, a suspected person with mental illness,” found the defendant getting off a train at Jecheon Station and requested identity confirmation. When the defendant refused identity confirmation and stepped backward, the officers grabbed the defendant’s arm and waist, and in the course of resisting, the defendant hit an officer’s face several times.
Judgment: The court found that—in light of the dispatched officers themselves having stated that the defendant showed no appearance of being judged to be in mental confusion or intoxicated—the defendant did not fall within the object of a protective measure set by Article 4(1)1 of the Act on the Performance of Duties by Police Officers (a person who has lost normal judgment or volition due to mental confusion or heavy intoxication). It also held that the act of grabbing the defendant’s arm before even about 2 seconds had passed after the identity-confirmation request could not be regarded as an act permitted under the Act on the Performance of Duties by Police Officers and so constituted an unlawful execution of duties; therefore, inflicting assault on the officer in the course of resisting it did not constitute the offense of obstruction of official duties (Changwon District Court, Nov. 17, 2023, 2023godan1798).
B. A case of obstructing departure after voluntary accompaniment
1) Changwon District Court, Oct. 15, 2024, 2023no1682
Facts: The defendant complied with the officers’ request for voluntary accompaniment and went to the police substation, but the officers demanded that he sign a voluntary-accompaniment consent form and blocked his departure. When the defendant’s father prepared a custody-receipt and tried to leave with the defendant, an officer again demanded the signing of the voluntary-accompaniment consent form and blocked the departure, and in the course of protesting, the defendant grabbed and shook the officer’s collar.
Judgment: The court—premising that voluntary accompaniment requires the other party’s consent or assent, so there is freedom to depart from the police office at any time after voluntary accompaniment—judged that the officers’ act of blocking the defendant’s departure while demanding the signing of the voluntary-accompaniment consent form was hard to regard as a lawful execution of duties. Accordingly, even if the defendant assaulted the officers, the offense of obstruction of official duties was not established (Changwon District Court, Oct. 15, 2024, 2023no1682).
C. A case of blocking departure from the scene after a stop-and-question was refused
1) Gwangju District Court, Suncheon Branch, Sept. 14, 2023, 2023godan86, 869 (consolidated) (the acquitted portion)
Facts: Police officers requested the defendant to confirm his personal details at a scene where there was a heavily bleeding woman, but the defendant expressly refused, saying “go get a warrant.” When the officers nonetheless physically blocked the defendant’s departure from the scene, the defendant pushed an officer and hit his neck area with an elbow.
Judgment: The court held that, the defendant having expressly refused to provide his personal details, physically blocking his departure from the scene—in a situation where there was no basis for the officers to take a compulsory measure—constituted an unlawful execution of duties, and that even if the defendant thereafter exercised violence, the offense of obstruction of official duties was not established (Gwangju District Court, Suncheon Branch, Sept. 14, 2023, 2023godan86, 869 (consolidated)).
D. A case of unlawful arrest of a flagrant offender
1) Daegu District Court, Aug. 10, 2023, 2022godan3770 (finalized with appeal dismissed by Daegu District Court, Oct. 11, 2024, 2023no3346)
Facts: While an officer was arresting the defendant as a flagrant offender of property damage and taking him to a patrol car, the defendant assaulted the officer—headbutting his facial area, kicking him, and the like.
Judgment: The court found that, for arrest of a flagrant offender, there must be the punishability of the act, the present nature and temporal proximity of the offense, the clarity of the offender and the offense, and the necessity of arrest; and that this arrest was unlawful for failing to meet the requirements for arrest of a flagrant offender. Because the offense of obstruction of official duties presupposes a lawful execution of duties, even if the defendant assaulted the officer in resistance to the unlawful arrest, the offense was not established (Daegu District Court, Aug. 10, 2023, 2022godan3770; Daegu District Court, Oct. 11, 2024, 2023no3346).
E. A case relating to blocking entry to a district-office building
1) Seoul Central District Court, Aug. 13, 2024, 2023no1472
Facts: When the defendant tried to enter through a 3rd-floor entrance door of the district-office annex (one side of which was open), a district-office employee, citing COVID-19 quarantine and that it was before the start of business, immediately exercised physical force to block him, and in the course of resisting, the defendant assaulted the employee’s face and torso.
Judgment: The court judged that—in a situation where there was no special entry-control procedure—it was hard to regard there as having been a need to immediately exercise physical force to block the defendant merely because he tried to use an open entrance door, and that the district-office official should first have given guidance rather than immediately using a physical method. Because the measure of immediately exercising physical force against the defendant was thus an unlawful execution of duties, even if the defendant inflicted assault in the course of resisting it, the offense of obstruction of official duties was not established (Seoul Central District Court, Aug. 13, 2024, 2023no1472).
3. Handling Where Bodily Injury Was Inflicted After an Unlawful Execution of Duties
Where, in the course of resisting an unlawful execution of duties, one inflicts even bodily injury on the public official, the offense of obstruction of official duties results in acquittal by the negation of the elements, but as to the offense of bodily injury, whether self-defense is established is a separate issue. The precedents hold that if an officer’s arrest can only be regarded as unlawful, departing from a lawful execution of duties, then the suspect’s inflicting bodily injury on the officer in the course of resisting to escape that arrest is an act to escape a present unjust infringement of the body caused by the unlawful arrest, constitutes self-defense, and unlawfulness is excluded (Supreme Court, May 26, 2011, 2011do3682; Supreme Court, Sept. 21, 2017, 2017do10866).
Scholarship also explains that, where the elements of assault, etc.—as the means or method of resistance to or defense against an unlawful execution of duties—are satisfied, the precedents in principle recognize self-defense, but where it departs from the scope of resistance to or defense against the unlawful official act, becoming an active and aggressive act that departs from appropriateness, self-defense, excessive defense, and justifiable act are all denied.
In practice as well, for a person who assaulted or intimidated an official executing an unlawful official act, the courts necessarily render acquittal on the offense of obstruction of official duties by the negation of the elements, and in many cases render acquittal on the offense of bodily injury by the exclusion of unlawfulness.
4. Summary
| Case | The unlawful execution of duties | Conclusion |
|---|---|---|
| Changwon Dist. Ct. 2023godan1798 | Forcible physical suppression with the requirements for a protective measure unmet | Acquittal |
| Changwon Dist. Ct. 2023no1682 | Obstructing departure after voluntary accompaniment | Acquittal |
| Gwangju Dist. Ct., Suncheon Branch, 2023godan86 | Physically blocking departure from the scene after a stop-and-question was refused | Acquittal |
| Daegu Dist. Ct. 2022godan3770 | Requirements for arrest of a flagrant offender unmet | Acquittal |
| Seoul Central Dist. Ct. 2023no1472 | Blocking entry by immediately exercising physical force without guidance | Acquittal |
The above cases are all ones in which a police officer’s or public official’s execution of duties was judged unlawful for failing to meet the concrete legal requirements and methods, so that the “lawful execution of duties” that is an element of the offense of obstruction of official duties was lacking, and acquittal was rendered (Criminal Act, Article 136(1)).
Requirements for Lawful Self-Defense Against an Unlawful Execution of Official Duties
1. Overview
For an act of resistance to an unlawful execution of official duties to be recognized as self-defense, it must satisfy all three requirements demanded by Article 21(1) of the Criminal Act: (1) a present unjust infringement; (2) a defensive act; and (3) appropriateness (Criminal Act, Article 21(1)). The precedents consistently hold that “whether a defensive act is socially appropriate must be judged by taking into account all the concrete circumstances—the kind and degree of the legal interest infringed by the infringing act, the method of the infringement, the urgency of the infringing act, and the kind and degree of the legal interest to be infringed by the defensive act” (Supreme Court, Mar. 15, 2017, 2013do2168; Supreme Court, Nov. 13, 2003, 2003do3606).
In an obstruction-of-official-duties case, the unlawfulness of the execution of duties itself is judged first, as a preliminary question, and only where unlawfulness is recognized is whether self-defense is established for the act of resistance then examined.
2. Practical Standards by Requirement
A. The present nature of the infringement
1) The basic principle
A “present infringement” is determined not by whether the infringing act has formally reached completion, but means the period until the infringement situation against one’s own or another’s legal interest ends. Accordingly, where, owing to a series of continuous acts, the infringement situation does not cease, or even if it ceases temporarily there is an objective ground that a further infringement will arise immediately, even if some of those acts have reached completion, the infringement situation can be regarded as not having ended as a whole (Suwon District Court, June 28, 2024, 2023no2120; Seoul Northern District Court, Aug. 11, 2023, 2022gojeong1335).
2) Application in obstruction-of-duties cases
Where an execution of duties such as an unlawful arrest or blocking is in progress, the present nature is recognized. By contrast, for an act of resistance made after an unlawful execution of duties has already ended, the present nature may be denied.
In practice, even where the defendant assaulted an officer after being taken to a patrol car, the courts tend to recognize the present nature of the infringement if the unlawful-arrest state is continuing (Changwon District Court, May 27, 2022, 2021no5; Ulsan District Court, Sept. 30, 2021, 2020godan2230).
B. The unjust nature of the infringement
1) The standard for judging the unlawfulness of the execution of duties
The lawfulness of the execution of duties must be judged objectively and reasonably on the basis of the concrete situation at the time of the act, and must not be judged afterward from a purely objective standard (Incheon District Court, Sept. 16, 2022, 2021no1607; Daejeon District Court, Jan. 18, 2024, 2022no2931). In the case of arrest of a flagrant offender in particular, unless it is recognized that, viewed from the situation at the time of arrest, the investigating body’s judgment on the requirements is markedly unreasonable in light of the rule of experience, it must not be concluded to be unlawful (Incheon District Court, Sept. 16, 2022, 2021no1607).
2) Main types where unlawfulness was recognized
| Type | Basis for recognizing unlawfulness |
|---|---|
| Requirements for arrest of a flagrant offender unmet | Lacking one or more of punishability, present nature, clarity, and necessity |
| Miranda rule not given | Intent to give notice after arrest despite there having been room to give it before arrest |
| Requirements for a protective measure unmet | Non-recognition of whether requirements such as mental confusion or heavy intoxication apply |
| Obstructing departure after voluntary accompaniment | Loss of the voluntariness of the voluntary accompaniment |
| Blocking without a legal basis | Requirements under the Act on the Performance of Duties by Police Officers unmet |
(Supreme Court, May 26, 2011, 2011do3682; Seoul High Court, June 10, 2021, 2020no1759)
3) Where unlawfulness was denied
Where a measure to prevent the occurrence of danger under Article 6 of the Act on the Performance of Duties by Police Officers, or a lawful arrest of a flagrant offender, was carried out, the unjust nature of the infringement is not recognized and self-defense is not established (Seoul Central District Court, Feb. 15, 2024, 2023godan6410; Daejeon District Court, Jan. 18, 2024, 2022no2931).
C. Defensive intent
1) The basic principle
For self-defense to be established, the defensive act must be to defend against a present unjust infringement of one’s own or another’s legal interest. Defensive intent is required as the motive and purpose of the defensive act, and where it is lacking, self-defense is not established (Supreme Court, Mar. 15, 2017, 2013do2168).
2) Application in obstruction-of-duties cases
The courts recognize defensive intent where the act of resistance to an unlawful execution of duties was to escape arrest or recover bodily freedom. By contrast, where it was not resistance to the unlawful execution of duties but an active infliction of bodily injury on the officer, or damage to a public object, while protesting it, it cannot be called a defensive act and defensive intent is denied.
As a particularly notable case, the Seoul Northern District Court recognized self-defense even for a defendant’s act of insulting officers after being brought to the police station following an unlawful arrest, recognizing defensive intent and appropriateness on the ground that it was an impulsive act to express the injustice of the arrest and urge release (Seoul Northern District Court, June 23, 2023, 2023godan55). This accords with the principle that a curse or insulting expression incidental to an act of resistance to an unlawful execution of duties may also constitute self-defense.
D. Appropriateness — the most central issue in practice
1) The standard of judgment
Appropriateness is the most central requirement dividing whether self-defense is recognized, and is judged by considering the following circumstances comprehensively (Supreme Court, Mar. 15, 2017, 2013do2168; Supreme Court, Nov. 13, 2003, 2003do3606).
| Factor considered | Specific content |
|---|---|
| Kind and degree of the legal interest infringed | Bodily freedom, life and body, etc. |
| Method of the infringement | Intensity of physical force, dangerousness of the means |
| Urgency of the infringing act | Imminence, continuity |
| Kind and degree of the legal interest to be infringed by the defensive act | The degree of injury inflicted on the officer, etc. |
2) Cases where appropriateness was recognized
The courts take a far more lenient attitude toward recognizing appropriateness in resistance to an unlawful execution of duties than in an ordinary fight case. They recognize self-defense broadly—recognizing a reasonable ground even where the victim suffered an injury of 2 weeks or more, and the like.
Looking concretely at cases where appropriateness was recognized:
- Inflicting injury on an officer in the course of resisting to escape an unlawful arrest (Supreme Court, May 26, 2011, 2011do3682; Supreme Court, July 4, 2000, 99do4341).
- In the course of resisting an unlawful arrest, scratching an officer’s right arm and right face with the nails, inflicting an injury requiring about 2 weeks’ treatment (Seoul High Court, June 10, 2021, 2020no1759).
- Inflicting injury in the course of resisting officials cracking down on roadside obstructions while having delivered only a maintenance-notice document lacking the legal requirements and methods (Busan District Court, Feb. 18, 2009, 2008gojeong3293).
- Exercising physical force against officers in the course of resisting an unlawful arrest that did not meet the requirements for arrest of a flagrant offender for the offense of insult (Uijeongbu District Court, Jan. 9, 2025, 2024no705).
3) Cases where appropriateness was denied — exceeding the scope of passive defense
By contrast, even with resistance to an unlawful execution of duties, where it departs from the scope of passive defense and proceeds to an active, aggressive act, appropriateness is denied.
Concrete cases where appropriateness was denied in practice:
- In an unlawful-arrest state where the officer merely requested a breath test and was not exercising force, hitting the officer’s stomach and inflicting injury (per the purport of Supreme Court, Dec. 13, 2012, 2012do11162).
- Even where an officer’s measure to completely block participation in a demonstration was unlawful, actively inflicting injury on the officer and damaging a public object while protesting it.
3. The Practical Flow of Judging Whether Self-Defense Is Recognized
(1) Confirm the unlawfulness of the execution of duties
→ Requirements for arrest unmet, Miranda rule not given, violation of the principle of proportionality, etc.
▼
(2) Confirm the present nature of the infringement
→ Whether the unlawful execution of duties is in progress or has ended
▼
(3) Confirm defensive intent
→ Whether the purpose was escaping arrest / recovering bodily freedom, or an active intent to attack
▼
(4) Judge appropriateness (the crux)
→ Whether within the scope of passive defense vs. an active, aggressive act
→ The balance between the infringed legal interest and the defended legal interest
→ The degree of injury to the victim official, and the mode and method of resistance
4. Conclusion
Whether self-defense is recognized for an act of resistance to an unlawful execution of official duties is, in the end, decided at the appropriateness requirement. The courts are more lenient in recognizing appropriateness in unlawful-execution-of-duties cases than in ordinary fight cases, but where the resistance departs from the scope of passive defense and takes on an active, aggressive character, self-defense, excessive defense, and justifiable act are all denied (Criminal Act, Article 21(1)). Accordingly, in practice, the key strategy for defense counsel is to prove—through the concrete facts—that the defendant’s act of resistance was of a passive, defensive character to escape the unlawful execution of duties.
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