공무집행방해죄에서 직무집행의 적법성에 관한 몇 가지 고찰

Arguments of the systematic status of the legality of a public official’s performance of duties is the basis for solving the question of what criminal liability will be recognized when there is a mistake in the legality of a public official’s performance of duties to a public official or an actor. Focusing on the fact that only a public official’s legal performance of duties is worth protecting under the criminal law, the theory of constituent element is valid. However, considering the preliminary effectiveness of administrative act, it is to be said that it is worth protecting a public official’s performance of duties that is not naturally-invalid. The crime of obstruction of performance of official duties is in an absorption relationship with the crime of violence and the crime of intimidation. Whether the worthlessness of act and that of result in these crimes are offset is determined at the stage of illegality evaluation. From the standpoint of uniformity in the evaluation of illegality, it is to be said that the worthlessness of act and that of result in the crime of obstruction of performance of official duties are also determined at the same stage. A public prosecution instituted against a part of facts of a crime is allowed and the bill of Indictment is also subject to amend. The court's judgment on whether the performance of duties is legal appears in the final judgment, the substantive judgment. Therefore, there is no need to limit the establishment of the crime of obstruction of performance of official duties at the stage of constituent elements evaluation. In addition, for public officials who perform their duties, recognizing the illegality of performing their duties is recognizing the illegality of their acts. In the end, it is to be said that it is the theory of an element of illegality that goes well with our legal system. According to the theory of an element of illegality, what an actor did not recognize the circumstances building the foundation of the legality means a mistake in premise fact of reason for justification, and what an actor recognized such circumstances, but did not recognize his or her act’s illegality means a mistake in law. It is understood that the Supreme Court is also taking the perspective of the theory of an element of illegality now.