[2] The time and termination time of the general traffic obstruction / When the assembly causing traffic obstruction was involved, but the flow of traffic was already obstructed by another participant at the time of participation, the elements for establishing a general traffic obstruction by the participant

[3] The case holding that the court below erred by misapprehending the legal principles on the ground that the defendant is liable as a co-principal of a general traffic obstruction in light of all the circumstances, in case where: (a) the defendant was able to take part in the memorial system of “the national behavior during the Sewol ferry No. 1 cycle” held in the Seoul plaza without reporting under the Assembly and Demonstration Act; (b) went along along along along along along with other participants of the assembly while occupying an exclusive lane along the broadcasting vehicle along with the line of order; and (c) returned home on the road when putting in place the vehicle along with the police who restrains driving

[2] General traffic obstruction is an abstract dangerous crime, where traffic is impossible or considerably difficult, and the result of traffic obstruction is not practically necessary. In addition, traffic obstruction in general traffic obstruction acts have the nature of continuous crime, and the traffic obstruction continues to exist as long as the state of traffic obstruction continues. Therefore, even if the traffic flow has been obstructed by other participants at the time of participation in an assembly causing traffic obstruction, general traffic obstruction is established if it is deemed that the traffic obstruction continues to exist in collusion with other participants who caused traffic obstruction, at the time of participation, even if the traffic flow has already been obstructed by other participants.

[3] In a case where the defendant, without reporting under the Assembly and Demonstration Act, appeared to have committed a direct act of interfering with traffic, such as moving along the road, by accepting it without reporting under the Act on Assembly and Demonstration (hereinafter “A assembly”), after going beyond the line of order maintenance and driving along the road along with other participants of the assembly and driving ahead of the line of order maintenance and driving along the road along with the police who restrains driving along the vehicle, and staying in the road; the case holding that the defendant can be deemed to have committed an act of interference with traffic by deeming that the defendant committed an act of interference with traffic, such as interfering with traffic, as the police goes beyond the line of order maintenance set up in order to maintain public order and go beyond the line of order maintenance, and thus, it can be deemed that the defendant was aware of the acts between the participants, and that the defendant had committed an act of interference with traffic, such as interfering with traffic completely by occupying the road, and thus, the defendant's act of interference with traffic, as it constitutes an act of interference with general assembly and demonstration, and it can be deemed that it constitutes an unlawful act of interference with traffic.

1. Article 185 of the Criminal Act provides, “A person who damages, destroys, or destroys a road, waterway, or bridge, or obstructs traffic by other means shall be punished by imprisonment with prison labor for not more than ten years, or by a fine not exceeding 15 million won.” The purpose of general traffic obstruction is to punish not only a crime under the protection of the law of traffic safety for the general public, which damages or makes it impossible to pass through a road, etc., but also any act that makes it impossible or remarkably difficult to pass through by interfering with traffic by other means (see Supreme Court Decision 2003Do4485, Oct. 10, 200).

Since the freedom of assembly and demonstration is a fundamental right of citizens guaranteed by the Constitution, in the event that a general traffic obstruction is applied to persons attending an assembly and demonstration, it may result in an unfair restriction on the freedom of assembly and demonstration. However, the general traffic obstruction may be established, barring any special circumstances, if it entails traffic obstruction even in the case of an assembly or demonstration, taking into account the fact that the general traffic obstruction method is comprehensively prescribed as above, and the possibility of directly infringing on the general public’s traffic safety when conducting an assembly and demonstration on the road.

General traffic obstruction is established in cases where participants attending an assembly or demonstration without reporting under the Assembly and Demonstration Act make it impossible or considerably difficult for them to pass through by interfering with road traffic due to driving along the lanes (see, e.g., Supreme Court Decision 2006Do755, Nov. 13, 2008). However, even in such cases, general traffic obstruction is not established as a matter of course for all participants. In fact, where participants are able to take part in the assembly or demonstration to cause traffic obstruction, or where participants are able to take part in the assembly or demonstration to take part in the assembly or demonstration, or to take part in the participant’s participation in the assembly or demonstration, or to take part in the assembly or demonstration, the general traffic obstruction is established (see, e.g., Supreme Court Decision 2016Do4921, Nov. 10, 2016).

On the other hand, general traffic obstruction is an abstract dangerous crime, where traffic is impossible or considerably difficult, and the result of traffic obstruction is not practically necessary (see, e.g., Supreme Court Decision 2004Do7545, Oct. 28, 2005). In addition, traffic obstruction in general traffic obstruction is deemed to have the nature of continuous crime, and the traffic obstruction continues to exist in an unlawful state where the traffic obstruction continues. Therefore, even if the traffic obstruction occurred in an assembly causing traffic obstruction, if it is deemed that the traffic flow has been obstructed by other participants at the time of participation, and if it can be deemed that the traffic obstruction continues to exist in collusion with other participants who caused traffic obstruction, it can be said that the traffic obstruction continues to exist in an implied and pure manner (see, e.g., Supreme Court Decision 2017Do1408, Jan. 24, 2018).

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following facts.

A. On April 16, 2015, at the Seoul Square, approximately 10,00 persons were present at the meeting of approximately 10,000 persons, the trend of the “national Action against the People’s Countermeasures Council for the Sewol Ferry” organized by the “National Assembly for the Sewol Ferry 1” (hereinafter “instant assembly”) was held without reporting.

B. The participants in the assembly started the operation along the order keeping line set up in the two lanes in the direction of the police in the Seoul Square from the Sejong Square to the Sejong Square, and went beyond the order keeping line at around 21:10. At around 21:16, the participants began to occupy the ten-lane lanes as the Sejong Square.

The police planned a plan for prior control, meeting, etc. to prevent ordinary vehicles from being confined in the area where the instant assembly is installed, and immediately after the participants commenced their operation, the police installed a line for maintaining order passing along the lanes in Korea or in front of the hotel at around 21:15. At around 21:16, the police installed a wall in the luxical distance and the luxical bridge at the south of the luxical square as the south side of the luxical square.

At around 21:17, the participants in the assembly continued to move beyond the line prior to Korea or hotel order keeping, and the police kept the movement of the participants in the assembly by installing a side wall in front of the Seoul SPS Center at around 21:20.

C. After attending the meeting of this case held in Seoul Square, the Defendant left the three-class police station, ranging from 21:27 to 22:04, with other participants at the meeting of this case, occupied the entire lane according to the broadcast vehicle beyond the line of order, putting the vehicle in front of the Seoul SPS Center, putting the vehicle ahead of the line of order, and left the three-class police station to stop their driving. Around that time, the Defendant returned home.

3. Examining the above facts in light of the legal principles as seen earlier, the Defendant is liable as a co-principal of general traffic obstruction. The reasons are as follows.

A. The Defendant, along with other participants in the assembly, committed the act of the police beyond the line set up by the police to maintain public order, etc., and occupied the lanes in the third class. As such, it can be seen that the combination of doctors, who perceived each other’s acts between the participants in the assembly, was carried out implicitly and objectively. Therefore, the Defendant ought to be deemed to have committed the direct act of interfering with traffic, such as occupying roads, etc., while recognizing the illegality of the assembly of this case.

B. Since the participants in the assembly of this case continued to have a full restriction on vehicle traffic by occupying roads, it can be evaluated that the act of occupying roads constitutes a direct traffic obstruction act or a traffic obstruction act constitutes an unlawful state of traffic obstruction.

C. In light of the contents and progress of the assembly and demonstration in this case, the detailed act form, such as the participants moving along the road beyond the line of order, the duration of road occupation, and the fact that the Defendant continued to move along with other participants in the assembly, etc., the Defendant may be deemed to have functional control over the above crime by intrinsic contribution.

4. Nevertheless, the lower court acquitted the Defendant of the facts charged of this case. In so determining, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on co-principals of general traffic obstruction, thereby adversely affecting the conclusion of the judgment.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)