Obstruction of Official Duties: Elements, Intent, and Punishment

What is obstruction of official duties?

Obstruction of official duties is defined in Article 136 of the Korean Criminal Act.

Article 136 (Obstruction of Official Duties) ①A person who commits assault or intimidation against a public official engaged in the performance of his/her duties shall be punished by imprisonment for not more than 5 years or a criminal fine not exceeding KRW 10 million.

②The same punishment as in the preceding paragraph shall apply to a person who commits assault or intimidation against a public official with the intent to compel or coerce him/her to perform an act in the course of his/her duties, or to make him/her resign from office.

Elements of obstruction of official duties

Elements of obstruction of official duties.

1. The act must target a public official engaged in the performance of his/her duties
2. The performance of the duties must be lawful
3. There must be assault or intimidation

Obstruction of official duties: a public official engaged in the performance of duties

A public official engaged in the performance of duties for the purposes of obstruction of official duties includes not only national and local government officials, but also those engaged in the affairs of a public corporation.

However, foreign public officials are not included as public officials here.

In addition, ‘engaged in the performance of duties’ does not refer only to the moment when a public official is actually carrying out an act directly necessary for performing his/her duties; it also encompasses the time when a public official is on duty for the purpose of performing his/her duties. Depending on the nature of the duties, there are cases where it is inappropriate to separate the process of performing the duties individually and to discuss the beginning and end of each part separately, and where it is reasonable to grasp various types of acts collectively as a single, continuous performance of duties.

(Supreme Court 2018. 3. 29. Decision 2017Do21537)

Obstruction of official duties: lawfulness of the performance of duties

The lawfulness of the performance of duties in obstruction of official duties is judged not by a purely objective standard applied after the fact, but on the basis of the specific circumstances at the time of the act.

The factors used to judge the lawfulness of the performance of duties in obstruction of official duties.

• Did the act fall within the abstract scope of the public official's authority?
• Did the act fall within the specific scope of the public official's authority?
• Did it follow the procedures and methods prescribed by law?

Accordingly, acts that a public official carries out for his/her own convenience, unlawful forced escort, or an illegal search do not constitute obstruction of official duties.

Obstruction of official duties: assault or intimidation

Assault in obstruction of official duties refers to the exercise of physical force, and it includes not only direct assault but also indirect assault.

Indirect assault refers to acts such as throwing objects on the floor or playing loud music.

Intimidation in obstruction of official duties refers to the act of communicating harm with the intent to cause fear in the other party.

The content of the harm communicated must be such that, taking into account the various circumstances at the time of the act—including the background, the surrounding situation at the time of the act, the disposition of the perpetrator, the degree of familiarity between the perpetrator and the other party, and the mutual relationship such as their status—it objectively causes the other party to feel fear; if the intimidation is so minor that the other party would not be concerned at all, it does not amount to intimidation.

(Supreme Court 2006. 1. 13. Decision 2005Do4799)

Obstruction of official duties by deceptive means

Obstruction of official duties by deceptive means is defined in Article 137 of the Korean Criminal Act.

Article 137 (Obstruction of Official Duties by Deceptive Means) A person who obstructs the performance of a public official's duties by deceptive means shall be punished by imprisonment for not more than 5 years or a criminal fine not exceeding KRW 10 million.

In other words, a person may be punished even when the performance of official duties is obstructed by deceptive means rather than by assault or intimidation.

"Deceptive means" in the crime of obstruction of official duties by deceptive means

"Deceptive means" in the crime of obstruction of official duties by deceptive means refers to causing the other party to misperceive, be mistaken, or be unaware in order to achieve the purpose of the perpetrator's act, and then exploiting that misperception, mistake, or lack of awareness. This crime is established only when the other party consequently performs a wrongful act or disposition; and if the criminal act does not go so far as to actually block or genuinely hinder a specific performance of official duties and ends in an attempt, it cannot be punished as the crime of obstruction of official duties by deceptive means.

(Supreme Court 2021. 4. 29. Decision 2018Do18582)

Obstruction of official duties: intent

Intent is not included among the elements of obstruction of official duties. In other words, a person may be punished for the crime of obstruction of official duties even without any intention to obstruct the performance of official duties.

However, it is necessary that the person be aware of the fact that the other party is a public official engaged in the performance of duties, and of the fact that he/she is committing assault or intimidation against that person.

In this case, even if the awareness is uncertain in content, it may be recognized as willful blindness / dolus eventualis.

Punishment for obstruction of official duties

According to the sentencing guidelines of the Sentencing Commission, the punishment for obstruction of official duties is as follows.

Criminal defense attorney for obstruction of official duties

Obstruction of official duties presents certain difficulties because the victim is a public official.

In many cases the victim has no intention to settle, and even if there is such an intention, the settlement may fall through due to internal rules or guidelines.

In addition, obstruction of official duties can be perceived as resistance to public authority, and if that happens, leniency becomes even harder to expect.

Obstruction of official duties may result in imprisonment, and as a rule the investigation proceeds with the suspect in custody, making it a crime that cannot be taken lightly.

Therefore, if you have committed obstruction of official duties, you should promptly seek the help of a criminal defense attorney and prepare sentencing materials.