[2] The scope to which police officers are permitted to enter the place of an outdoor assembly or demonstration for maintaining public order (i.e., to the minimum extent deemed necessary to protect an assembly or demonstration and to maintain public order)

[3] Whether a maintenance line established by the method of posting police officers constitutes a maintenance line under the Act on Assembly and Demonstration (negative) / Whether a crime of violation of Article 24 subparagraph 3 of the Act on Assembly and Demonstration due to a violation of the utility of a maintenance line constitutes a violation of Article 2 subparagraph 5 of the same Act only where a maintenance line falling under Article 2 subparagraph 5 of the same Act is legally established pursuant to Article 13 of the same Act (affirmative)

In light of the relevant provisions of the Assembly and Demonstration Act and the Enforcement Decree of the Assembly and Demonstration Act regarding the establishment of a line for maintenance of order, if deemed necessary for the protection of assembly and demonstration and for the maintenance of public order, and if it falls under the grounds provided by Article 13(1) of the Enforcement Decree of the Assembly and Demonstration Act, it is reasonable to view that a line for maintenance of order under the Assembly and Demonstration Act may be established not only in the outer boundary area of the place where the assembly or demonstration takes place but also in the place of assembly or demonstration. However, even in such a case, the line for maintenance of order shall be set at the minimum scope deemed necessary for the protection of assembly and demonstration and the maintenance of public order. If a line for maintenance of order was set out beyond the above scope,

In addition, in light of the language and purport of the penal provision regarding the act of the order keeping line and the invasion of the order keeping line under the Assembly and Demonstration Act, it is reasonable to view the order keeping line as an object that can function as a boundary mark, such as belt, fence, line, etc., or a safety mark under the Road Traffic Act. Thus, even if police officers play an actual role in the order keeping line by means of the external range of the place where the assembly or demonstration takes place, or by means of the reduction in the inside the place, etc., it cannot be said that it is a order keeping line

[2] Article 19(1) of the Assembly and Demonstration Act provides that “A police officer may enter the place of an assembly or demonstration after notification to the organizer of the assembly or demonstration, and entry to the place of the assembly or demonstration: Provided, That entry to the place of an indoor assembly may be made only in cases of urgency for the performance of his/her duties.” Article 19(2) provides that “the organizer of an assembly or demonstration, moderators, or manager of the place shall cooperate with the police officer in the performance of his/her duties to maintain order.” Article 19 of the Assembly and Demonstration Act provides that entry to the place of an assembly or demonstration shall be permitted to maintain order at the place of the assembly or demonstration.” Article 19 of the Assembly and Demonstration Act provides that entry of police officers to maintain order at the place of an assembly or demonstration as the requirement for the entry of police officers to maintain order at the place of an outdoor assembly or demonstration. However, in light of the constitutional value and function of the freedom of assembly or demonstration, guarantee of the rights of assembly or demonstration, harmony with the legislative purpose of the Assembly and Demonstration Act, it does not constitute an unlawful act.

[3] Article 2 subparag. 5 of the Assembly and Demonstration Act provides that the line of order defined by Article 2 subparag. 5 of the Assembly and Demonstration Act refers to the belts, fences, tea lines, and other objects, or the boundary signs established by safety signs under the Road Traffic Act. Thus, the line of order established by posting police officers does not constitute the line of order under the Assembly and Demonstration Act. Article 13(1) of the Assembly and Demonstration Act provides that "the head of the competent police authority may set up a line of order within the minimum scope if deemed necessary for protecting assemblies and demonstrations and maintaining public order." Article 24 subparag. 3 of the Assembly and Demonstration Act provides that "When the head of the competent police authority establishes a line of order in accordance with paragraph (1) of the same Article, he/she shall notify the organizer or the person in charge of liaison thereof when establishing the line of order," and Article 24 subparag. 3 of the Assembly and Demonstration provides that "a person who lawfully intrudes the line of order established under Article 13 of the Assembly and Demonstration Act for a considerable time without justifiable reason, or damages or damages the utility of the line of order."

1. Opinion on the legality of the establishment of a line for maintenance of order and the placement of police officers;

A. We examine the legality of the assembly and demonstration law.

1) Article 2 subparag. 5 of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) provides that “The chief of the competent police station or the commissioner of the competent district police agency shall set up a boundary mark, such as belts, fences, lines, etc. set up by dividing the place of assembly or demonstration or the section of the happiness at a certain time in order to protect lawful assembly and demonstration, maintain order, or ensure smooth traffic flow.” In addition, Article 13(1) of the Assembly and Demonstration Act provides that “the chief of the competent police agency may set the minimum scope and set a line for maintenance of order, if deemed necessary for the protection of assembly and demonstration and for the maintenance of public order.” Article 13(1)3 of the Enforcement Decree of the Assembly and Demonstration Act, upon delegation of the above provision, lists cases where a line for maintenance of order may be set up under each subparagraph. Meanwhile, Article 24 subparag. 3 of the Assembly and Demonstration Act provides that the maintenance line set up under Article 13 of the Assembly and Demonstration Act shall be punished for a considerable period of time without justifiable cause, or by destroying, concealing, concealing, moving, or impairing the

In light of the relevant provisions of the Assembly and Demonstration Act and the Enforcement Decree of the Assembly and Demonstration Act, if it is deemed necessary for the protection of assembly and demonstration and for the maintenance of public order, and if it falls under the grounds provided by Article 13(1) of the Enforcement Decree of the Assembly and Demonstration Act, it is reasonable to view that a line for the maintenance of order under the Assembly and Demonstration Act may be established not only in the outer boundary area of the place where the assembly or demonstration is held, but also in the place of assembly or demonstration. However, in such a case, the line for the maintenance of order shall be set at the minimum scope deemed necessary for the protection of assembly and demonstration and the maintenance of public order. If the line for the maintenance of order was set out beyond the above scope, it is not legitimate as it violates

In addition, in light of the language and purport of the penal provision regarding the act of the order keeping line and the invasion of the order keeping line under the Assembly and Demonstration Act, it is reasonable to view the order keeping line as an object that can function as a boundary mark, such as belt, fence, line, etc., or a safety mark under the Road Traffic Act. Thus, even if police officers play an actual role in the order keeping line by means of the external range of the place where the assembly or demonstration takes place, or by means of the reduction in the inside the place, etc., it cannot be said that it is a order keeping line

Meanwhile, Article 19(1) of the Assembly and Demonstration Act provides that “A police officer may enter the place of an assembly or demonstration by putting him/her in uniform at the place of the assembly or demonstration: Provided, That entering the place of an indoor assembly or demonstration shall be permitted only in cases of an emergency to perform his/her duties.” Article 19(2) provides that “The organizer of an assembly or demonstration, moderators, or the manager of the place shall cooperate with the police officer in the performance of his/her duties to maintain order.” Article 19(1) of the Assembly and Demonstration permits a police officer to enter the place of an assembly or demonstration for maintaining order.” Article 19 of the Assembly and Demonstration Act provides only notification to the organizer and uniform wearing as the requirement for a police officer’s entry for maintaining order at the place of an outdoor assembly or demonstration. However, in light of the constitutional value and function of the freedom of assembly or demonstration, the guarantee of the right to assembly and demonstration and the legislative purpose of the Assembly and Demonstration Act, such entry shall not be deemed unlawful if a police officer enters the place of an outdoor assembly or demonstration or demonstration within the minimum scope of public order.

2) In full view of the circumstances as indicated in its holding, the lower court determined that the establishment of a line for maintenance of order (referring to a line for maintenance of order through the placement of articles, such as plastic structures; hereinafter the same shall apply) in front of the cremation at the assembly site of this case

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the records, the conclusion that even though the part of the original judgment was not appropriate during the original judgment, it is acceptable to view that the order keeping line prior to the formation of the assembly place in this case was set at the minimum scope necessary to protect the assembly and maintain public order.

3) Next, the lower court, based on its stated reasoning, determined that the posting of a police officer before the scene of the instant assembly was illegal under the Act, by comprehensively taking into account the following circumstances, including: (a) the formation of a police order line by means of cutting down police officers; (b) the purpose and scale of the instant assembly; and (c) the number of moderatorss in light of the purpose, size, number, etc. of order keepers, etc. of the instant assembly; and (d) it appears that the police officer could sufficiently manage the instant assembly without

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, it cannot be deemed that the establishment of a line for maintenance of public order under the Act, such as the judgment of the court below, where police officers entered the front of the instant brigade, which is the place of assembly, and possession of part of the same remains, cannot be deemed as the establishment of a line for maintenance of public order under the Act.

B. We examine the legality of the performance of duties by police officers under the Act.

The lower court determined that, in full view of the circumstances as indicated in its reasoning, it was unlawful in the Act on the Performance of Duties by Police Officers, based on the following: (a) there is no evidence to deem that ○○○○○○ Countermeasure Committee-related persons attempted to enter or damage cultural properties of the instant chemical group after the end of May 2013; and (b) it is objectively recognized that the assembly participants’ attempt to commit an act of damaging a chemical or cultural property, and, in particular, it is difficult to deem that there was a situation that would promptly cause serious damage to a chemical or cultural property unless the assembly participants refrain from doing so.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, it is difficult to deem that the establishment of order keeping lines before the unification at the assembly site of this case and the placement of police officers meet the requirements for performing duties to prevent and control crimes under the Act on the Performance of Duties by Police Officers.

C. Therefore, the lower court’s determination based on the foregoing determination is justifiable to have determined that the establishment of a line to maintain order before the unification at the assembly site of this case and the placement of police officers was unlawful. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

2. Opinion on the establishment of special obstruction of performance of official duties

Since the crime of obstruction of performance of official duties is established only where the performance of official duties is legitimate, it does not constitute the crime of obstruction of performance of official duties even if an assault was committed against a public official who performs an illegal act (see Supreme Court Decision 91Do2797 delivered on February 11, 192, etc.).

Based on its stated reasoning, the lower court upheld the first instance judgment that acquitted of the charge of obstruction of the performance of special duties among the facts charged in the instant case.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

3. Opinion on the establishment of a crime of violation of the Assembly and Demonstration Act due to infringement of utility of order keeping ships;

Article 2 subparag. 5 of the Assembly and Demonstration Act provides that the line of order defined by Article 2 subparag. 5 refers to belts, fences, lines, and other objects, or safety signs established under the Road Traffic Act. Thus, the line of order established by posting a police officer does not constitute a line of order under the Assembly and Demonstration Act. Article 13(1) of the same Act provides that “the head of the competent police authority may set a line of order within a minimum scope if deemed necessary for the protection of assembly and demonstration and for the maintenance of public order.” Article 24 subparag. 3 of the same Act provides that “When the head of the competent police authority establishes a line of order pursuant to paragraph (1), he/she shall notify the organizer or person in charge of liaison thereof when he/she sets up the line of order.” Article 24 subparag. 3 of the same Act provides that “A person who, without good cause, intrudes a line of order established under Article 13, or damages, conceals, moves, or removes the utility of the line of order under Article 24 subparag. 3 of the Assembly and Demonstration Act.

In light of the aforementioned legal principles and the record, the order keeping line before the order keeping line, which had infringed the utility of the Defendants at will, cannot be deemed to have been set lawfully pursuant to Article 13 of the Assembly and Demonstration Act. Thus, the Defendants’ act does not constitute a constituent element of the crime of violating the Assembly and Demonstration Act due to the infringement of the utility of

Of the facts charged in the instant case, it is inappropriate for the court below to have determined that the violation of the Assembly and Demonstration Act due to the infringement of the use of the line prior to the order keeping line was established, but it was inappropriate for the court below to have explained the purport that the violation should be avoided due to meeting the self-defense requirement. However

The lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the relevant legal doctrine.

4. Conclusion

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

Justices Noh Jeong-hee (Presiding Justice)