[2] In a case where the prior prohibition or restriction of an assembly under the Assembly and Demonstration Act is permissible, and where the actual assembly does not cause a direct and obvious danger to the legal interests of others or public peace and order unlike the contents of the initial report, whether the order of dissolution and the punishment for non-compliance can be imposed on the sole ground that the assembly was an assembly notified in advance (negative)

[3] In a case where Defendants were prosecuted for violation of the Assembly and Demonstration Act on the ground that they failed to immediately dissolve despite the Defendants’ voluntary dispersion order in the process of holding an outdoor assembly prohibited by the notice, the case affirming the lower court’s conclusion that the Defendants guilty of failing to comply with the order on dispersion, on the ground that the part on the premise that the court below’s order may be issued solely for the reason that the assembly was prohibited by the prior notice

[4] In a case where the Defendants were arrested by competent police officers, etc. and were indicted for violating the Assembly and Demonstration Act on the ground that they refused to comply with the voluntary dispersion order while holding an outdoor assembly prohibited by the Defendants, the case holding that the court below erred by taking the court below as evidence for conviction against the video CD whose face-to-face arrest warrant was recorded along with the investigation report without undergoing the examination of evidence under the Criminal Procedure Rule, but the above error does not affect the conclusion of the judgment

[2] Even if the freedom of assembly is prohibited or restricted in certain cases under the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”), it is justified only when it is essential to protect other important legal interests. In particular, the prohibition and dissolution of an assembly may be permitted only when it is clearly necessary to protect public peace and order, and in principle, other means that restrict the freedom of assembly, such as restrictions on the number of participants in the assembly, restrictions on the distance of the objects of the demonstration, the method of demonstration, the timing of demonstration, the required time limit, etc., which can only be considered after the commencement of an assembly. Accordingly, even if an assembly is prohibited or restricted in advance, if the actual assembly does not directly and clearly cause any infringement of other person’s legal interests or other public safety and order, such as the occurrence of peace or reduction of the size of the assembly, it shall be punished in addition to punishing the assembly in violation of the prior prohibition or restriction, and its dissolution shall not be punished by failing to comply with it.

[3] In a case where Defendants were prosecuted for violation of the Assembly and Demonstration Act (hereinafter “the Assembly”) on the ground that they failed to dissolve without delay in spite of voluntary dispersion order three times during an outdoor assembly prohibited by the Defendants (hereinafter “instant assembly”), the Court affirmed the judgment below which found the Defendants guilty of the instant assembly to be lawful in light of the following: (a) the period during which the assembly and the same kind of assembly were held; (b) the degree of damage to residents surrounding the place of assembly; (c) the degree of restriction and prohibition measures on the same kind of assembly; (d) the progress of the assembly; and (e) the actual progress of the assembly of this case, etc., the assembly of this case constitutes “case where it is likely to seriously harm the peace of private life” as provided by Article 8(3)1 of the Assembly and Demonstration Act; and (e) the actual assembly of this case may not be deemed to constitute a case where it did not directly and clearly harm other people’s legal interests or other public peace and order, and thus, it is inappropriate for the court below to order dissolution on the sole ground that the assembly was prohibited in advance notice.

[4] In a case where Defendants were indicted for violating the Assembly and Demonstration Act by being arrested by police officers, etc. under the jurisdiction of police officers, etc., on the ground that they refused to comply with the order of voluntary dispersion three times during the outdoor assembly where the Defendants’ prohibited notice was in progress, the Court held that the aforementioned error does not affect the conclusion of the judgment, on the grounds that the prosecutor submitted a criminal investigation report, which briefly summarizes the contents of CD without submitting separate evidence for the arrest of the Defendants, accompanied by a CD as a documentary evidence, and Article 292-3 of the Criminal Procedure Act and Article 134-8 of the Regulation on Criminal Procedure provide that the examination of evidence for recording and video media, etc. shall be conducted by listening to or viewing it, and thus, the court below erred by adopting the CD as evidence for conviction without undergoing the examination of evidence as stipulated in the Regulation on Criminal Procedure, but it is sufficient to acknowledge guilty even if the admissibility of evidence is recognized and the remaining evidence is produced through legitimate evidence examination procedure.

1. As to the assertion of misapprehension of legal principles, such as the unconstitutionality of Article 8 of the Assembly and Demonstration Act

The freedom of assembly is a basic right guaranteed by the Constitution, but there is no restriction, and if it is necessary for national security, maintenance of order or public welfare pursuant to Article 37(2) of the Constitution, the freedom of assembly may be restricted by law to the extent that it does not infringe on its essential contents.

Based on this, the Assembly and Demonstration Act (hereinafter “Act”) requires a person intending to hold an outdoor assembly or demonstration to report certain matters in advance to the chief of the competent police station, thereby identifying the nature, size, etc. of the outdoor assembly or demonstration in advance and protecting legitimate outdoor assembly or demonstration by reporting; and also, in the case of a certain outdoor assembly or demonstration in order to prevent in advance any danger to public safety and order resulting therefrom, it shall be restricted and prohibited in advance (see Supreme Court Decision 2008Do3974, Oct. 23, 2008, etc.).

Article 8(1) and (3)1 of the Assembly and Demonstration Act at issue in this case provides that “The head of the competent police authority who has received the report may notify the organizer of the assembly of the fact that the place specified in the report on assembly is a residential area of another person or a place similar thereto, which is likely to cause serious damage to the property or facility or to seriously undermine the peace of privacy by means of assembly or demonstration.” If the resident or manager requests the protection of the facility or place, the head of the competent police authority who has received the report may notify the organizer

If the reported place of assembly falls under a residential area of another person or a place similar thereto, it is not a prior restriction or prohibition of an assembly, but rather a “contribute of causing serious damage to property or facilities due to an assembly or demonstration or seriously undermining the peace of privacy,” and in addition, the requirements and procedures for restriction or prohibition, such as restricting or prohibiting an assembly only when the resident or manager requests the protection of facilities or place, are limited to the “when he/she requests the protection of the facilities or place,” and the legal interests of the residents in the neighborhood around the reported place of assembly are adjusted within a reasonable scope. Thus, it cannot be deemed as violating Article 21(2) of the Constitution, which does not infringe on the essential contents of the

Furthermore, the notification of prohibition of assembly is an administrative disposition that the chief of the competent police station notifies the organizer, etc. of the assembly of the fact that the assembly is prohibited pursuant to the prohibition provision of assembly under the Assembly and Demonstration Act after receiving the report of assembly, and thus, it cannot be deemed a system that violates the Constitution itself. In the operation thereof, in order to prevent infringement of the freedom of assembly according to the police's arbitrary judgment, an objection against the notification of prohibition under Article 9 of the Assembly and Demonstration Act can be raised. Thus, this cannot be deemed to be in violation of the Constitution (see Supreme Court Decision 91Do1870 delivered on Nov. 12,

In the same purport, the court below rejected the Defendants’ assertion of unconstitutionality, and found the Defendants guilty of holding or participating in the prohibited outdoor assembly among the facts charged in the instant case.

As alleged in the ground of appeal, the court below did not err by misapprehending the legal principles on the unconstitutionality of Article 8 of the Assembly and Demonstration Act.

The ground of appeal on this part is without merit.

2. As to the assertion of misapprehension of legal principles as to dispersion order under the Assembly and Demonstration Act

As above, even if the freedom of assembly is prohibited or restricted in certain cases under the Assembly and Demonstration Act, it is justified only when it is necessary to protect other important legal interests. In particular, the prohibition and dissolution of assembly can be permitted only when it is clearly and directly threatened with public peace and order. Other means, such as restricting the freedom of assembly, such as restrictions on the number of participants of demonstration, limitation on the objects of demonstration, distance of the objects of demonstration, methods of demonstration, time of demonstration, restriction on required time, etc., can be considered only after the completion of all the possibilities of allowing assemblies (see, e.g., Constitutional Court en banc Order 200Hun-Ba67, 83, Oct. 30, 2003).

Therefore, even if an assembly is subject to prior prohibition or restriction, if the actual assembly does not cause a direct and obvious danger to the infringement of the legal interests of others or other public peace and order, such as the assembly held peacefully differently from the original report or reduced the size of the assembly, etc., it cannot be punished by ordering dissolution of the assembly in addition to punishing the assembly by violating the prohibition or restriction prior to the assembly.

The part of the court below’s order of dissolution is not appropriate solely on the ground that the assembly of this case was prohibited and notified in advance.

However, according to the reasoning of the judgment below and the evidence duly admitted by the court below, from October 23, 2006, Defendant 1 was punished for interference with business by frequently broadcasting labor needs and their requirements using a tent installed at the assembly site of this case from around two 1006, and Defendant 1 was punished for several times due to the crime of interference with business. The 112 report, which caused damage to the noise caused by the continuous assembly of this case, was 50 times again between July 4, 2008 and August 14, 2008 and the police’s passive and hot response, and the Internet civil petition with the contents of this case’s passive and hot response. The residents of ○○○ Village 10 apartment complex located adjacent to the assembly of this case filed several complaints to resolve the damage caused by noise generated by the assembly of this case over several years by Defendant 1, but the Defendants did not file a complaint with the court for the prohibition of the assembly of this case’s speech or provisional disposition with the court.

In full view of the period during which the assembly of this case and the assembly of this case were held, the degree of damage to residents surrounding the assembly place and the degree of resistance, the progress of the restriction and prohibition measures on the same kind of assembly, and the actual progress of the assembly of this case, etc., it is legitimate to prohibit and notify the assembly of this case in advance, and it does not constitute a case where the assembly of this case constitutes “case where the assembly of this case is likely to seriously harm the peace of private life” as provided by Article 8(3)1 of the Assembly and Demonstration Act, and it does not constitute a case where the assembly of this case actually took place, contrary to the contents of the initial report, does not directly and clearly cause any harm

We agree with the court below’s conclusion that the court below deemed the dispersion order of this case to be legitimate, and found the Defendants guilty.

3. As to the assertion regarding the misapprehension of legal principles as to illegality of arrest under dispersion order under the Assembly and Demonstration Act, and violation of the rules of evidence

Article 292-3 of the Criminal Procedure Act provides that matters necessary for the investigation of evidence other than documents, such as drawings, photographs, audio tapes, video tapes, computer discs, and other materials made to store information, shall be prescribed by the Supreme Court Regulations. Accordingly, Article 134-8 of the Regulation on Criminal Procedure provides that the examination of evidence of audio or video media shall be conducted by listening to or viewing by reproducing audio or video media.

According to the reasoning of the judgment below and the record, the prosecutor submitted a brief summary of the above CD to the investigation report containing the above CD, without submitting a separate evidence for the arrest warrant against the Defendants. The court below rejected the judgment of the court of first instance that issued the above investigation report as evidence of guilt without going through the examination of evidence in the manner of listening to or viewing the order of dissolution of this case and the illegality of arrest following the order of multiple-investment CDs, and without going through the examination of evidence, and subsequently, rejected the Defendants’ assertion on the ground that “as to the above CD images, according to the above CD images, it can be known that two minutes and twenty secondss were required to arrest all the Defendants,” thereby using the above CD’s film as evidence of guilt.

Although the court below adopted the above CD as evidence without undergoing the examination of evidence as stipulated in the Criminal Procedure Rule, it is erroneous in the measures that the court below adopted the CD as evidence for conviction, and considering the remaining evidence adopted by the court below after the admissibility of evidence is recognized and lawful examination of evidence, it is sufficient to recognize the criminal facts that the defendants failed to dissolve without delay even if they were voluntarily ordered to do so on three occasions during the meeting held on November 27, 2008 (hereinafter “instant meeting”), so the above error by the court below does not affect the conclusion of the judgment.

Meanwhile, according to the records, the instant assembly was a very small-scale assembly in which only 12 Defendants participated, and the Defendants knew that there was no movement to dissolve the instant assembly in spite of the voluntary dispersion order over three occasions, and in light of the above size and the fact that the Defendants are anticipated to voluntarily dissolve the assembly, it cannot be deemed unlawful for competent police officers, etc. to arrest the Defendants directly for the purpose of dissolution of the instant assembly immediately after the third dispersion order.

This part of the grounds of appeal is without merit.

4. Conclusion

Therefore, all appeals by the Defendants are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)