In order to attend the fourth national conference scheduled to be opened in the Peace Park, the Defendants were gathering 15 persons at the end of the new political party. However, even though the Defendants’ failure to perform any act such as going beyond the relief at the time, the Defendants’ act cannot be deemed as a “auction” under the Assembly and Demonstration Act, the Defendants did not have an assembly subject to dispersion. However, there was an error of misunderstanding of facts or misunderstanding of legal principles in determining that there was no assembly subject to dispersion order.

2. Determination

A. Summary of the facts charged

The Defendants decided to stop the relocation of the U.S. base by holding the 4,00 members of each organization in collusion with the 4,00 members of the U.S. military base relocation project promoted pursuant to the "Agreement between the Republic of Korea and the United States of America on the Relocation of the U.S. Armed Forces," and on the grounds that the U.S. military base relocation project reflects their confidence and infringes on the residents' right to live in the area scheduled to be incorporated into the U.S. military base, etc., and against the project, the Defendants did not immediately move the U.S. military base by holding the 4,00 members of the above organization, and did not immediately move the U.S. military base at the 3thmar police station having jurisdiction over the 4,00 members of the U.S. military base relocation project, and did not immediately move the U.S. military base by holding the 2-2, 82-2, 200 new police station having jurisdiction over the 4,000 U.S. police station out of the 17th National Police Station.

B. The judgment of the court below

In full view of the circumstances leading up to the meeting of the new political party, the items held by the Defendants, the actions taken therefrom, the hours connected to the meeting, and the distance from the planned place of the meeting, etc., it is reasonable to deem that the above Defendants temporarily gather together at the meeting of the new political party only at the preparation stage for participation in the meeting, and they do not constitute an assembly or demonstration subject to dispersion under the Assembly and Demonstration Act. As long as it is not recognized that there was an assembly subject to dispersion order under the Act on Assembly and Demonstration, the head of the family police station having jurisdiction over the issue of dispersion order, and even if the above Defendants did not comply with such order, the order of dispersion itself is not legitimate, and thus the Defendants cannot be punished as a violation of such order.

C. Judgment of the court below

(1) According to the Assembly and Demonstration Act (amended by Act No. 8424 of May 11, 2007), the head of the competent police authority may demand voluntary dispersion of an assembly or demonstration conducted without legitimate assembly report within a considerable period of time and may order dissolution if he/she does not comply with such demand (Article 18(1)3); and all participants shall immediately leave the assembly or demonstration upon the order of dispersion (Article 18(2)); and any participants shall be subject to criminal punishment if they do not immediately leave the assembly or demonstration upon the order of dispersion (Article 21).

However, there is room for discussion as to what is the subject of the order of dispersion since Article 6(1) and Article 6(1) of the Assembly and Demonstration Act stipulate only an outdoor assembly and demonstration as the subject of the report (Article 6(1) and the concept of “outside assembly in a place where there is no ceiling or all sides are not closed (Article 2 subparag. 1), and there is no specific concept of “meeting”. The Supreme Court held that “an assembly under Article 3 of the Assembly and Demonstration Act means that a large number of people gather temporarily at a specific place or at a certain place for a specific purpose, and there is no restriction on their gather or people’s number of places or groups” (see Supreme Court Decision 83Do2528, Nov. 22, 1983). However, even in the above opinion, at least, the concept of assembly under the above Act should meet the objective requirements of “the assembly to be temporarily gathered” and the subjective requirement of “specific purpose” under the Assembly Act.

Thus, even if many people gather at a certain place, there is a problem whether the order of dispersion can be issued as long as the assembly scheduled to participate is prohibited as a non-reported assembly even if there is no specific purpose that is common among them, or as long as the assembly scheduled to participate in is prohibited from being a non-reported assembly.

In light of the theory of interpretation that restrictions on freedom of assembly shall be justified only when it is essential for the protection of other important legal interests, and in particular, prohibition and dissolution of assembly may be allowed only when there is clear direct threat to public peace and order in principle, in light of the Constitutional Court's interpretation that prohibition and dissolution of assembly may be allowed only when it is clearly necessary for the protection of other important legal interests, even if the assembly intended to participate is not permitted as illegal assembly, even if it is not permitted as an assembly to participate in the assembly in a place other than the planned place of assembly.

D. On May 14, 2006, according to the evidence duly examined and adopted by the court below, the fourth national conference against the transfer of the US military base was scheduled to be held in the peace park. However, the entrance to the peace park was obstructed on the ground that the above assembly was illegal assembly. The Defendants received the message of a new assembly from the Jeon Jong-si headquarters or the Korean National Policy Committee, and used the bus, etc. on the 3thm of this Arrangement while driving towards the NA, the police officers were not allowed to enter the bus, and the Defendants did not have been allowed to participate in the assembly or demonstration at the time of the assembly or demonstration, and there was no other evidence to acknowledge that the Defendants used the above assembly or demonstration at the time of the assembly or demonstration at the time of the assembly or demonstration to the extent that the Defendants were not allowed to participate in the assembly or demonstration at the time of the assembly or demonstration, and there was no other evidence to acknowledge that the Defendants had been using the remaining number of people at the time of the assembly or demonstration at the time of the assembly or demonstration.

Article 18 of the Assembly and Demonstration Act provides that the above judgment of the court below which acquitted the Defendants on the premise that the Defendants’ act does not constitute an assembly subject to dispersion order under Article 18 of the Assembly and Demonstration Act is just and acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged by the prosecutor. Thus, the prosecutor’s argument above is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges in writing (Presiding Judge)