The plastic unmanned maintenance line within the assembly site of this case is legally established by the head of Seoul △△△△ Police Station (hereinafter “the head of the △△△△ Police Station”) pursuant to the provisions of the Act on the Performance of Duties by Police Officers (hereinafter “the Act”) before the Assembly was held on July 25, 2013 by the Labor Relations Commission for democratic society. Even if there is a decision to suspend execution regarding the court’s notice prohibiting outdoor assembly, it is still lawful. The head of the △△△△△ Police Station has used it as a maintenance line under the Act on the Assembly and Demonstration (hereinafter “Act”). The posting of the installation of the plastic unmanned maintenance line and the police officers is lawful, as it is in accordance with the provisions of the Act on the Assembly and Demonstration or the Minor Service Act.

Therefore, it cannot be deemed that the Defendants’ act of removing the above order keeping line and impairing its utility constitutes self-defense, and the Defendants’ act of assaulting the police officers Nonindicted 1 and Nonindicted 2, who lawfully performed official duties by showing multiple power with other participants in the assembly, constitutes the crime of obstruction of special performance of official duties.

Nevertheless, the court of first instance rendered a verdict of innocence against the Defendants on different premise, and the judgment of the court of first instance erred by misunderstanding facts or by misapprehending the legal principles on self-defense.

2. Determination:

A. Whether the legality of the measure to install plastic maintenance line and assign police officers is recognized within the place of the assembly of this case

1) Whether the legality of the Assembly and Demonstration Act is recognized

In addition to the facts and circumstances duly admitted by the first instance court and the evidence duly admitted and investigated by the first instance court and the appellate court, considering the following circumstances, the chief of the △△ Police station cannot be deemed lawful as a measure under the Assembly and Demonstration Act to install a plastic maintenance line within the assembly site of this case and assign police officers.

A) As to the installation of plastic unmanned maintenance lines

① Article 2 Subparag. 5 of the Assembly and Demonstration Act provides that “The boundary signs, such as belts, fences, lines, etc. set up by clearly dividing the place or stage of an assembly or demonstration as a line for maintenance of order.” Even according to such language and text, the line for maintenance of order is required to function as a boundary sign dividing the place and other places, and it is not possible to function as the place of an assembly or demonstration itself as one of the grounds for the establishment of a line for maintenance of order (Article 13(1)1 of the Enforcement Decree of the Assembly and Demonstration Act presents an example of “where it is necessary to limit the place of an assembly or demonstration” as one of the grounds for the establishment of a line for maintenance of order, but it is interpreted as not only to limit the place of the reported assembly or demonstration itself, but also to prevent the extension of the place of an assembly or demonstration reported in the previous place for assembly or demonstration.”

② However, the instant plastic unmanned maintenance line was set up in the braille news bulletin block for visually disabled persons, namely, within the assembly site of this case, and did not play a role as a boundary sign separating the assembly site and the outer range. In order to prevent participants from being pushed down from India to the roadway, the police could install a line for maintenance of order in the vicinity of the assembly site of this case and the roadway, and there was a considerable space between the rear part of the fleet and the sub-pathm in order to prevent the assembly participants from being pushed down to the roadway, and the purpose of protecting cultural properties could be achieved sufficiently by installing a line for maintenance of order in the above space.

③ On July 6, 2013 and July 11, 2013, the Civil Labor Relations Commission reported the assembly to the chief of the △△△ Police Station, and clarified the boundaries of the assembly site by attaching photographs and drawings regarding the assembly site (public trial records 164, 172-174 pages). Moreover, the assembly of this case was conducted in the “recover space between the steel-frames and the steel-frames (in the form where a pole with a iron at a certain intervals is installed and the pole is slick connected to the studs) and the braille news reporting block for visually impaired persons. Therefore, there was no need to separate the assembly site from the general roads by using a separate line for maintaining order.

B) As to the placement of police officers

① According to the provisions of the Assembly and Demonstration Act, the organizer of an assembly or demonstration shall maintain the order in the assembly or demonstration (Article 16(1)), and the moderators shall maintain the order in the assembly or demonstration in compliance with the instruction of the organizer (Article 17(1)); and any person who participates in an assembly or demonstration shall comply with the instruction of the organizer and moderators for the maintenance of order (Article 18(1)). In other words, the Assembly and Demonstration Act ensures the autonomy of the assembly by having the participants comply with the instruction of the organizer and moderators, by having the organizer manage the assembly and appoint an order keeper, and by having the participants participate in the assembly bear the overall responsibility of the organizer of the assembly without any intervention of the State power.

(2) However, according to Article 19(1) of the Assembly and Demonstration Act, a police officer, who wear a uniform, may notify the organizer of the assembly and enter the place of assembly. However, even in such a case, if a police officer continues to possess part of the place of assembly, it is practically impossible to achieve the purpose of the assembly, and thus, it is not permissible to permit the police officer’s continuous possession of part of the place of assembly. This is also considered as follows: “A police officer, upon entering the place of assembly, shall be notified to the organizer of the assembly at the time of such entry, and the organizer of the assembly shall cooperate with the police officer in the performance of his/her duties.

③ The organizer of the instant assembly was a civilian Labor Relations Commission, and the civilian Labor Relations Commission had three persons among the 30 participants in the assembly as order keepers. The form of the instant assembly was also informed citizens of the fact that “the illegality of the formation of the Republic of Korea in front of the Korean question and the abuse of police power, etc., are infringed upon” in the form of the lecture and the assembly of Nonindicted 5, without proceeding or demonstration (the trial record 169-170 pages), and in light of the purpose, size, and number of order keepers, it appears that the instant assembly could have been sufficiently managed at the Civil Labor Relations Commission without the placement of police power.

④ In addition, the number of police officers mobilized, such as the passage control line was installed in front of the instant fleet, and the number of police officers posted in the vicinity of the assembly site (at the image of the assembly of this case, it appears that police officers were waiting in the vicinity of the police bus parked near the roadway, according to the image of the assembly of this case), appears to have met the number of participants in the assembly of this case (at the court of Seoul High Court 2015No2496, the chief of the △△△ police station appeared to have attended the court of this case as witnesses and stated to the effect that “the police officers belonging to four companies were present in the front of the fleet, and the number of police officers is about 320,000,000,0000,0000,0000,0000,0000,0000,0000,0000,0000,0000).”

⑤ On the other hand, the prosecutor asserts to the effect that “where a person has a career on a line with the maintenance of order, it serves as a line for the maintenance of order, such as uniforms and marks, which show the career and career. If a person has damaged an object worn or possessed, it may be punished for a violation of the Act because it constitutes a crime committed by the maintenance of order.” (29,30 pages) However, the act of exercising force on a line installed by means of reducing police officers in line with the Criminal Act may be punished as obstruction of performance of official duties, etc. In light of the fact that the interpretation of the Act should be strict, and the interpretation of the Act should be excessively expanded or analogical interpretation of the meaning of the Act to the disadvantage of the defendant is contrary to the principle of no punishment without law, it is reasonable to view that “order maintenance line” under the Act refers to a boundary mark that is embodied and installed by a tangible object. Therefore, even if a police officer’s body is formed by the maintenance of order in the form of a police officer’s body, etc. for the purpose of installing a line, it cannot be deemed as a type of security.

2) Whether the legality of the law is recognized pursuant to the law of light position

A) Relevant provisions

1. The police officer under Article 2 (Scope of Duties) of the Act on the Performance of Duties by Police Officers, which includes the main text, shall perform the following duties: 3. The prevention, suppression, and investigation of crimes; 4. The collection, preparation, and distribution of information on public security; 5. International cooperation with foreign government agencies and international organizations; 7. Other matters concerning the maintenance of public peace and order; 1. The police officer may take the following measures within the extent of danger and injury to people's life or body; 1. The police officer may use the police equipment in his/her own place where there is any danger and injury to people's life or body; 2. The police officer may use the equipment in his/her own place where there is any danger and injury to people's life or body; 3. The police officer may use the equipment in his/her own place where there is any danger and injury to people's health or body; 4. The police officer may use the equipment in his/her own place where it is deemed necessary for the prevention of danger and injury to people's health or property;

B) Relevant legal principles

Article 6(1) of the Act on the Performance of Duties by Police Officers is a provision on the administrative immediate enforcement of the police for the prevention of crime. Administrative compulsory enforcement is exceptionally permitted within an inevitable extent to achieve the administrative purpose. Thus, the requirement for the issuance and enforcement of police officers’ measures should be carefully and strictly interpreted so that such measures can be exercised only to the minimum extent that such measures are inevitable. Within the scope of such interpretation and application, it can be consistent with the provisions on the guarantee of fundamental rights, such as the freedom of body under the Constitution, and the mental and interpretation principles under the Constitution (see Supreme Court Decision 2007Do9794, Nov. 13, 2008). This legal principle applies to cases where police officers take measures under Article 5(1) of the Act on the Performance of Duties by Police Officers.

C) Determination on the instant case

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and investigated by the first instance court and the appellate court, it is difficult to deem that there was an imminent obstacle to the police to the extent that it is necessary to install unmanned maintenance lines or assign police officers within the assembly site at the time of the assembly of this case. Therefore, it is difficult to deem that the installation of the above unmanned maintenance line and the placement of police officers pursuant to the provisions of the

① On April 4, 2013, the Seoul Jung-gu Office removed two tents installed by the parties involved in the instant assembly at the instant assembly on the ground that they were illegal buildings. The persons involved in the ○○ Countermeasures re-established the assembly at the said place, and repeated the installation of a tent, the entry into the chemical team, the replacement with police officers, etc., while holding the assembly at the said place. However, there is no evidence to deem that the parties involved in the ○○ Countermeasures did not attempt to enter the chemical group or to damage cultural properties even after the end of May 2013. In particular, it is objectively recognized that it was objectively recognized that the act of the participants of the assembly of this case, such as the damage of the chemical group or cultural properties, was about to be done in front, and it is difficult to view that “the situation where there was a concern about serious damage to the chemical group or cultural properties of this case, unless the act was avoided.”

② The Civil Labor Relations Commission, the organizer of the instant assembly, stated that the instant assembly was a separate organization separate from the ○○○ Countermeasures Division, which occupied the place of the instant assembly and caused conflicts with the police, and that the instant assembly was held independently by the Civil Labor Relations Commission, and that there was no official participation by the persons involved in the ○○ Countermeasures against the instant assembly (the Defendant 2 also stated that the Defendant 2 was aware of the intention to participate in the instant assembly on the grounds of the perception that the circumstances during which the instant assembly was held are “I would not be a sponsor,” and that “I would like to be sure that the Defendant 2 would not have been involved in the instant assembly,” (the investigative record).

③ On July 24, 2013, the day before the instant assembly was held, the Civil Labor Relations Commission held an assembly to the same effect, and the participants of the assembly also did not enter the assembly or damage cultural properties. In addition, the purpose of the instant assembly is to hold the “inform citizens of the illegality of the formation of the Daehan and the fact that the freedom of assembly is infringed due to the abuse of police power” in the form of Non-Indicted 5’s lectures and assemblies. As asserted by the prosecutor, it is difficult to deem that there was a need to prevent the crime from being committed.

④ Furthermore, as seen earlier, the Assembly and Demonstration Act guarantees the autonomy of the assembly as much as possible through the division of roles of organizers, moderatorss, and participants in the assembly, and thus, the police’s access to the assembly place and possession of part of the place prior to the commencement of the assembly, even if the order of the assembly was so high as to cause confusion and confusion, shall be deemed as infringing upon the autonomous order of the participants in the assembly, and barring special circumstances.

B. Whether Defendants violated the Assembly and Demonstration Act

1) Relevant legal principles

In a case where there is a considerable reason as an act to defend against the current infringement of one’s own or another’s legal interest, it constitutes a self-defense as stipulated under Article 21(1) of the Criminal Act, and thus, cannot be deemed unlawful. In order to establish self-defense as stipulated under Article 21 of the Criminal Act, the act of defense must be socially reasonable, taking into account all specific circumstances, such as the type and degree of the legal interest infringed by the act of infringement, the method of infringement, the kind and degree of the legal interest to be infringed by the act of infringement, and the degree of the legal interest to be infringed by the act of defense (see Supreme Court Decision 92Do2

2) Determination on the instant case

As seen earlier, it cannot be deemed lawful to install the plastic unmanned maintenance line within the assembly site of this case. In light of the following circumstances, which can be acknowledged by the evidence duly adopted and investigated by the first instance court and the appellate court, even if the Defendants were to have arbitrarily set the maintenance line, it constitutes self-defense and thus, its illegality is dismissed. In the same purport, the first instance court’s judgment that acquitted the Defendants of this part of the facts charged is justifiable, and the Prosecutor’s allegation of misunderstanding of facts or misapprehension of legal principles is not accepted.

① As seen earlier, setting up a line and posting police officers within the assembly place of this case cannot be deemed as the establishment of legitimate order keeping lines under Article 13 of the Assembly and Demonstration Act. This constitutes an act of unfairly infringing on the freedom of assembly between the Defendants and participants in the assembly, which is guaranteed by the Constitution. Furthermore, the installation of the above order keeping line leads to a situation in which the purpose of assembly is impossible, such as where the place of assembly is divided and the expression of intent through banner, etc. is restricted, and the degree of infringement of legal interest is not small

② Even though the head of the △△△ Police station received a decision to suspend the validity of the disposition of notification on the restriction of outdoor assembly from the Seoul Administrative Court on July 12, 2013 until the judgment on the merits was rendered, he/she set up a line to maintain order in the assembly and continuously posted police officers.

③ After the commencement of the assembly, Nonindicted 5, the chairman of the Labor Relations Commission, Nonindicted 5 demanded the removal of police officers from the line of order and the removal of police soldiers on several occasions (327 pages of the trial record). Nevertheless, police officers, who did not comply with the request, and the participants of the instant assembly, including the Defendants, removed the line of order from the place of assembly.

④ Meanwhile, Article 13(1) of the Assembly and Demonstration Act provides that a person may set up a line of order, if necessary for the purpose of “protection of assembly and demonstration and maintenance of public order,” so that the requirements per se are very abstract in relation to the establishment of the line of order, and even though the installation of the line of order as above may bring about the same result as that restricted or prohibited from the assembly, the procedures for raising an objection thereto are not provided. In such a situation, the Defendants voluntarily sent the unmanned line of order after Nonindicted 5’s oral warning to the outside of the place of assembly. In light of the circumstances leading up to the above act, method, and type and degree of the infringed legal interest, the Defendants’ act is against infringement of the freedom of assembly and thus, it can be deemed reasonable in society.

C. Whether the Defendants committed special obstruction of performance of official duties

1) Relevant legal principles

The crime of obstruction of the performance of official duties under Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. Even if an assault or intimidation is committed against a public official performing a lack of legitimacy, such act cannot be deemed as the crime of obstruction of the performance of official duties. In such cases, “legal performance of official duties” refers to cases where the act is not only within the abstract authority of a public official, but also meets the legal requirements and methods for specific performance of official duties (see, e.g., Supreme Court Decision 2007Do7514, Apr. 28, 2011).

2) Determination on the instant case

As seen earlier, the order keeping line of this case cannot be deemed to have been lawfully established under the Assembly and Demonstration Act or the Minority Act. In light of its developments and form, etc., the freedom of assembly is considerably infringed, and its illegality is not somewhat weak. As such, the act of the police officers Nonindicted 1 and Nonindicted 2, who were illegally established and tried to continue to maintain the order keeping line, cannot be deemed to constitute the performance of public duties that need to be protected under the Criminal Act. Thus, even if the Defendants exercised tangible power against the police officers who caused the lack of legality, it cannot be deemed that the crime of obstruction of performance of official duties is established. In the same purport, the first instance judgment that acquitted the Defendants of this part of the facts charged is justifiable, and thus, the Prosecutor’s allegation of mistake of facts or misapprehension of legal principles is not accepted.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since it is without merit.

Judges Cho Il-il (Presiding Judge)

1) Even though it is anticipated that an unlawful assembly or demonstration, which is subject to criminal punishment, will be held in a specific area in the future because it is prohibited by the former Assembly and Demonstration Act (amended by Act No. 8424 of May 11, 2007), it is not permissible to refrain from arbitrarily an act of starting or moving from or moving to an assembly or demonstration in another area where time and place are not adjacent to the time and place, to clearly exceed the scope of the police officer's restraint immediately under Article 6 (1) of the Act on the Performance of Duties by Police Officers