Obstruction of Justice Lawyer | Building a defense around the legality of the official act

Obstruction of Justice | Why the legality of the official act decides the case

Obstruction of justice is a crime defined by the lawfulness of the underlying official act. Korean courts have repeatedly held that an officer's duty must satisfy both an abstract requirement (it falls within the officer's general authority) and a concrete requirement (the specific method and procedure used were proper) to count as "lawful performance of duty" under Article 136 of the Criminal Act (형법 제136조).

What counts as a lawful official act

An act is only protected if it is within the official's jurisdiction, the official had authority to carry it out in that specific way, and the required legal procedure was followed. For example, an arrest without a warrant that does not meet the flagrant-offender requirements under the Criminal Procedure Act (형사소송법 제211조) may not be considered lawful, which can undercut the obstruction charge tied to resisting that arrest.

Illegality of the underlying act as a defense

If the officer exceeded their authority, used excessive force, or skipped a mandatory procedural step (such as failing to properly identify themselves or explain the reason for a stop), the act may fall outside the protection of Article 136. Courts assess this objectively based on the circumstances at the time, not on what the officer subjectively believed.

Mistaken belief about lawfulness

Even where the official act was in fact lawful, a defendant's genuine and reasonable mistake about its lawfulness can be argued as a mistake of fact affecting intent, though this is fact-specific and courts scrutinize whether the belief was reasonable under the circumstances.

Obstruction of Justice | Common defense angles beyond the legality issue

Even where the official act was clearly lawful, the case can still turn on whether your conduct meets the threshold of "assault" or "intimidation," and on the specific facts of intent and degree.

Threshold of assault or intimidation

Article 136 requires assault (violence) or intimidation directed at the official, not mere non-cooperation or verbal protest. Passive resistance, refusing to answer questions, or arguing with an officer generally does not itself satisfy the elements, and the degree of physical contact or the credibility of any threat becomes a key factual dispute.

Timing: before, during, or after the duty

The obstruction must occur while the official is performing the duty, or in close connection with it. If the physical altercation happened after the official duty had already concluded, or was unrelated to the duty being performed, this timing gap can be argued to negate the charge.

Intoxication and reduced capacity

Obstruction cases frequently arise from encounters involving alcohol. Depending on the degree of intoxication, an argument for diminished capacity may be considered under the general provisions on capacity (형법 제10조), though courts apply this narrowly and it does not automatically reduce liability.

Aggravating factors: group and weapon-related obstruction

If the act was committed by a group or involved a dangerous weapon, it can be charged under aggravated obstruction of official duties (형법 제144조), which carries heavier penalties. Distinguishing whether an object was genuinely used as a weapon, or was incidental to the scene, matters for how the case is charged and negotiated.

Obstruction of Justice | From police station to case resolution

Obstruction of Justice | How defense fees are typically structured

※ Costs vary depending on case complexity and specific circumstances; exact fees will be provided during consultation. No specific outcome is guaranteed.

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Frequently Asked Questions

Official References

• Korea Law Information Center — https://www.law.go.kr
• Easy-to-Find Everyday Legal Information — https://easylaw.go.kr
• Korea Legal Aid Corporation — https://www.klac.or.kr