Lee Young-hoon et al., Counsel for the defendant

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 degree. Therefore, in a case where the assembly or demonstration conducted within the reported scope or conducted differently from the reported details, and where the scope of the reported scope is not considerably deviating from the reported scope, 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 significantly deviates from the reported scope, or significantly makes it impossible or considerably difficult to pass through by interfering with traffic due to its serious violation of the conditions under Article 12 of the Assembly and Demonstration Act, general traffic obstruction is established (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. On March 28, 2015, the summary of the part concerning general traffic obstruction among the facts charged in the instant case, the Defendant was present at the conference of the National Pension Enhancement and the Resolution of the Resolution of the General Force Formation of the Public Officials Pension Magazine (hereinafter referred to as the “instant conference”), which was organized by the “Joint Force Headquarters for the Prevention of Magazine of Public Pension” at the Park Culture E-Man-do, Yeongdeungpo-gu, Seoul, Seoul, on March 28, 2015, by jointly with 5,00 participants in the assembly, and with 30 minutes, it interfered with the traffic of the above 30 minutes by driving on the road side of the said cultural horse as they go through and go along.

B. As to this, the lower court found the Defendant guilty of this part of the facts charged, on the ground that the Defendant conspired with other participants of the instant assembly in secret and orderly manner to make it impossible or considerably difficult to pass through by interfering with road traffic.

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

(1) The instant assembly was organized by the “Joint Stopover Headquarters for the Prevention of Maderns of Public Pension” consisting of organizations, such as the Korean Public Officials’ Union and the Korean Teachers’ Union, and around 14:00 on March 28, 2015, around 60,00 members participated in and participated in the resolution conference at the Green Park Culture Complex in Seoul and around 16:15. At around 16:15, more than 5,00 members participated in the conference and participated in the conference. At around 16:35, the instant assembly was carried out by occupying the way of the direction of the Egropical border, not in the direction of the progress. At around 16:35, there was a series of lanes on the two-way way in front of the Madur Buildings.

(2) The Defendant merely participated in the instant assembly as a member of the Korean Public Officials' Labor Union ○○○ City Branch, and the Defendant did not appear to have been aware in advance of the scope and conditions of the report of the instant assembly or of the instant plan, etc.

(3) The documentary evidence photographs submitted by the prosecutor showed that the defendant was involved in the demonstration before and after about 16:59 along with other participants in the assembly. Meanwhile, at the time of the prosecutor's investigation, the defendant stated that "I would like to say, at the time of the prosecutor's investigation, that "I would normally have been located in the front of the date of the demonstration, and that I would like to go back from the back of the direction immediately after the date of the demonstration."

(4) However, with documentary evidence taken by the Defendant, it cannot be specifically confirmed the process or degree of involvement of the Defendant in the instant assembly, and there is no evidence that the Defendant led to a direct act that causes traffic obstruction. In light of the fact that the instant assembly was carried out 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 the instant assembly, was aware of a significant deviation from the scope of the report or a significant violation of the conditions.

(5) On the sole basis of the Defendant’s statement that there was the line of the assembly, the lower court presumed that, at the time, the vehicle continued to have been passing at the time of the demonstration, and that the Defendant knew that the traffic was obstructed or could have sufficiently heard the said warning broadcast due to the circumstances where the warning broadcast on the illegal assembly by the police was repeated in the above entry part. However, it appears that it was difficult for the participants to 5,000 persons who participated in the assembly at the time to see that the scene was very disturbed due to the aid or the broadcast by the host of the assembly.

Under the above circumstances, it is difficult to view that the defendant's above statement alone proves without any reasonable doubt that he/she was aware of the fact that he/she correctly grasped the traffic obstruction situation or the content of warning broadcasting and was engaged in the conduct contrary to the details of the prior report.

B. Examining the above facts and circumstances in light of the legal principles as seen earlier, the Defendant appears to have participated simply in the instant assembly. It is difficult to view that the Defendant merely committed a direct act that may cause traffic obstruction by significantly deviating from the scope of the report of the instant assembly or seriously violating the conditions, or that it constitutes a case where the Defendant may be held liable for a crime of conspiracy to interfere with general traffic, as a co-principal.

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 conviction part of the judgment below is reversed, and that part of 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 on the bench.

Justices Kim Jae-hyung

Justices Ansan-chul et al.

Justices Noh Jeong-hee