Attorney Kang Young-gu, Lee Jong-hee

1. In light of Article 6(1) of the Assembly and Demonstration Act and the legislative purport thereof, where an assembly or demonstration is conducted on the road after completing lawful reports under the Assembly and Demonstration Act, the traffic of the road may be restricted to a certain extent. Therefore, in a case where the assembly or demonstration conducted within the reported scope or conducted differently from the reported contents, barring special circumstances, it does not constitute a general traffic obstruction under Article 185 of the Criminal Act even if the assembly or demonstration was obstructed thereby, barring special circumstances. However, in a case where the assembly or demonstration considerably deviates from the original reported scope, or makes it impossible or considerably difficult to pass by interfering with traffic due to serious violation of the conditions under Article 12 of the Assembly and Demonstration Act (see, e.g., Supreme Court Decision 2006Do755, Nov. 13, 2008).

However, since the scope of the initial report is considerably deviating from the scope of the report, or the participation in an assembly and demonstration that make it impossible or considerably difficult to pass by interfering with road traffic by seriously violating the conditions under Article 12 of the Assembly and Demonstration Act, all such participants do not necessarily constitute a general traffic obstruction. In fact, if the participant engages in a direct act causing traffic obstruction by seriously deviating from the reported scope or violating the said conditions, or in other cases, the participant may be held liable for a crime as a co-principal in light of the developments leading up to the participation or the degree of involvement of the participant (see, e.g., Supreme Court Decision 2016Do4921, Nov. 10, 2016).

2. A. The summary of the facts charged in this case is as follows: (a) the Defendant participated in the D'D held by the 'C organization' date (1) B, and went together at around 16:33, while moving along with 3,500 participants in the assembly at around 16:3 before and after, and moving along with 16:3,00, the Defendant conducted demonstration in collusion with the participants in the assembly in collusion with 'J' held by the organization of the H date (2) at around 18:13, while interfering with the traffic of the above participants in collusion with 'J'; and (3,000 participants in other assemblies at around 18:13 before and after, in order to move along with 1-ro, Jongno-gu Seoul Metropolitan Government intersection, the Defendant interfered with the traffic of the above participants in collusion with the above participants at the time of the assembly.

B. As to this, the court below reversed the judgment of the court of first instance which acquitted the defendant on the ground that the participants of each assembly including the defendant, etc. were involved in the crime of other participants by occupying the road where traffic obstruction is still underway, making it impossible or considerably difficult for them to pass through the vehicle, and the defendant also took part in the act of occupying the lane beyond the reported scope of each assembly, and thereby causing traffic obstruction. The police's installation of the order-order line and the wall by the defendant et al. is the result that the participants of the assembly such as the defendant et al. significantly exceeded the reported scope, and the defendant was guilty of the above charges.

3. A. Review of the reasoning of the lower judgment and the record reveals the following facts and circumstances.

(1) The meeting of this case was held by the 'C organization consisting of organizations such as FF associations and L cooperatives', and around 60,000 participants in the Green Park Culture Complex in Seoul, and started to proceed with the resolution, and thereafter, they started to proceed with the resolution. At around 16:15, more than 3,50 participants in the meeting were going to move along with the previous lane, rather than the active route reported by 3,500 participants in the meeting. At around 16:35, the meeting was conducted with the two directions as in front of the G building.

(2) The H date meeting of this case was held by one organization, and 8,000 persons in Seoul Square present at the Seoul Square, and thereafter the J was started to proceed with the meeting. At around 17:16, the participants, such as KV, left the course reported by the KV 1 to the intersection and moved to the intersection of the intersection, and conducted the demonstration.

(3) The Defendant participated in each of the assemblies of this case, and the evidentiary pictures submitted by the Prosecutor were taken with other participants in the assemblies of this case, and the shape of the Defendant’s participation in the demonstration at around 16:33 of the above G Building, and 18:13 of the H date, and 18:13 of the H date, where she was engaged in the demonstration, and she was engaged in the demonstration at the intersection.

(4) The Defendant was a member of L Cooperatives until 2014, and was acting as the representative of the M Committee at the time of each of the instant assemblies. However, it cannot be deemed that the Defendant was aware of either related to the organizer of each of the instant assemblies, or the scope and conditions of each of the instant assemblies, and plans for progress.

(5) In light of the fact that each of the instant assemblies was relatively peacefully in the state where there was no physical conflict with the police, it is difficult to readily conclude that the Defendant, while participating in each of the instant assemblies, was aware that the Defendant had been involved in a significant deviation from the scope of report or a significant violation of the conditions beyond the awareness that traffic control was driving on the road.

(6) The evidence photographs against the Defendant cannot clearly confirm the process or degree of involvement of the Defendant in each assembly of this case, and there is no evidence that the Defendant committed any direct act causing traffic obstruction.

(7) There is no circumstance to deem that the Defendant had caused traffic obstruction or had functional control through substantial contribution to traffic obstruction in order or implied communication between the organizer of each assembly or the participants that directly cause traffic obstruction.

B. Examining the above facts and circumstances in light of the legal principles as seen earlier, the Defendant merely appears to have participated in each assembly of this case. It is difficult to view that the Defendant committed a direct act causing interference with traffic by significantly deviating from the scope of reporting each assembly of this case or participating in a serious violation of the conditions, or that it constitutes a case where the Defendant can be held liable for committing a crime as a co-principal for interference with general traffic.

Nevertheless, the lower court erred by misapprehending the legal doctrine on general traffic obstruction and joint principal offenders, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Chief Justice Kim Jong-il

Justices Lee Dong-won

Justices Kim Gin-soo