특수공무집행방해치상등
The judgment below
The guilty part is reversed, and that part of the case is remanded to the Seoul High Court.
An appeal by a prosecutor.
The grounds of appeal are examined.
1. As to the Defendant’s ground of appeal
A. The lower court affirmed the first instance judgment convicting the Defendant of the violation of each Act by applying Article 20 Subparag. 1 and the main text of Article 10 of the former Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007; hereinafter “former Assembly and Demonstration Act”), among the facts charged in the instant case, the Defendant organized a night outdoor assembly from JT to IK 13 times during the 24:0 hours after sunset and from JT 19:57 to JX 02:05 on the following day.
On April 24, 2014, which was following the pronouncement of the lower judgment, the Constitutional Court rendered a decision that “The part on Article 10 of the former Assembly and Demonstration Act and Article 10 main text of the former Assembly and Demonstration Act among Article 20 subparag. 3 of the former Assembly and Demonstration Act shall be unconstitutional, which applies to an outdoor assembly or demonstration from sunset to 24 days from the same day.”
The decision of the Constitutional Court is deemed to be in violation of the Constitution, since the part concerning the “ outdoor assembly or demonstration” under Article 47 of the former Assembly and Demonstration Act, which “from sunset time to 24:00 on the same day” is deemed to have been partially unconstitutional. Therefore, it is effective as a decision of unconstitutionality under Article 47 of the Constitutional Court Act
In addition, Article 20 of the former Assembly and Demonstration Act is based on the common punishment for the part of night outdoor assembly or demonstration under the main sentence of Article 10 of the former Assembly and Demonstration Act. However, the statutory punishment is different depending on whether it is a person who hosts an outdoor assembly or demonstration at night (No. 1) or a simple participant (No. 3).
Therefore, although the above decision of the Constitutional Court is about the participants as stipulated in Item 3 of Article 20 of the former Assembly and Demonstration Act, since it was decided unconstitutional as to the above part of the night outdoor assembly among the night outdoor assembly as stipulated in the main sentence of Article 10 of the former Assembly and Demonstration Act, the organizer who was prosecuted for the violation of the prohibition of