Ko, Myoungsu,Problems and Legislative Reform of the Offense of Obstructing Traffic - Focusing on Its Legal Nature and Dogmatic Structure -(2026)
<Abstract>
Article 185 of the Criminal Act has traditionally focused on acts that obstruct vehicle flow to protect public safety. However, compared to 1953, when this regulation was established, alternative routes are usually available today, even if traffic on a specific road becomes significantly disrupted. Furthermore, the Road Traffic Act and the Road Act now sufficiently regulate traffic-related risks. Therefore, it is now appropriate to regulate only those obstructions directly linked to risks against human life, body, or property, taking into account the time of the act, lane configuration, and speed limits of the relevant section. While previous research on amending Article 185 focused primarily on excluding street demonstrations from the scope of the crime of obstruction of public traffic, this study operates on the premise that roads should be viewed as spaces for all people, not just vehicles. It aims to address the issue of the current constituent elements being overly broad due to the misaligned protective purpose of the norm. By clarifying the protective purpose of Article 185 and modifying its constituent elements accordingly, we can achieve the indirect effect of significantly reducing instances where road occupation during street demonstrations constitutes a crime. To argue for the necessity of changing the protective purpose and to improve the constituent elements, this study analyzes the current legal principles of interpretation and application, and critically reviews how the regulation currently functions (Il). Furthermore, through a comparison with Section 315b of the German Criminal Code, it demonstrates why the protective purpose must be changed (Il). To strengthen this argument and refine the constituent elements, the study focuses on the overbroad constituent elements ("by other means") of Article 185 and the penal provisions of the Road Traffic Act (IV). Finally, this study proposes amendments to Article 185 of the Criminal Act and Article 149, Paragraph 2 of the Road Traffic Act, and examines how legal principles regarding traffic obstruction during street demonstrations will change as a result (V).
< Keywords>
Crime of obstruction of public traffic, Street demonstration, Freedom of assembly and demonstration, Traffic blockage, Overbroad constituent elements, Road Act, Road Traffic Act, Crimes constituted by concrete endangerment of legal interests, Section 315b of the German Criminal Code(StGB)
Ko, Myoungsu,Problems and Legislative Reform of the Offense of Obstructing Traffic - Focusing on Its Legal Nature and Dogmatic Structure -(2026)
<Abstract>
Article 185 of the Criminal Act has traditionally focused on acts that obstruct vehicle flow to protect public safety. However, compared to 1953, when this regulation was established, alternative routes are usually available today, even if traffic on a specific road becomes significantly disrupted. Furthermore, the Road Traffic Act and the Road Act now sufficiently regulate traffic-related risks. Therefore, it is now appropriate to regulate only those obstructions directly linked to risks against human life, body, or property, taking into account the time of the act, lane configuration, and speed limits of the relevant section. While previous research on amending Article 185 focused primarily on excluding street demonstrations from the scope of the crime of obstruction of public traffic, this study operates on the premise that roads should be viewed as spaces for all people, not just vehicles. It aims to address the issue of the current constituent elements being overly broad due to the misaligned protective purpose of the norm. By clarifying the protective purpose of Article 185 and modifying its constituent elements accordingly, we can achieve the indirect effect of significantly reducing instances where road occupation during street demonstrations constitutes a crime. To argue for the necessity of changing the protective purpose and to improve the constituent elements, this study analyzes the current legal principles of interpretation and application, and critically reviews how the regulation currently functions (Il). Furthermore, through a comparison with Section 315b of the German Criminal Code, it demonstrates why the protective purpose must be changed (Il). To strengthen this argument and refine the constituent elements, the study focuses on the overbroad constituent elements ("by other means") of Article 185 and the penal provisions of the Road Traffic Act (IV). Finally, this study proposes amendments to Article 185 of the Criminal Act and Article 149, Paragraph 2 of the Road Traffic Act, and examines how legal principles regarding traffic obstruction during street demonstrations will change as a result (V).
< Keywords>
Crime of obstruction of public traffic, Street demonstration, Freedom of assembly and demonstration, Traffic blockage, Overbroad constituent elements, Road Act, Road Traffic Act, Crimes constituted by concrete endangerment of legal interests, Section 315b of the German Criminal Code(StGB)