[집회및시위에관한법률위반·퇴거불응][미간행]
Defendant 1 and three others
Jung-Jin Park
Defendant 1 shall be punished by imprisonment for six months.
However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.
The pronouncement of a sentence against the defendant 2, 3, or 4 shall be suspended.
The Defendants, at around 2004, were employees of Nonindicted Co. 2, who were in charge of mechanical management, etc. at the ○ University Hospital, and the contract for mechanical maintenance, etc. concluded with the above hospital was terminated on May 31, 2004 when the said company discontinued its business. On June 1, 2004, Nonindicted Co. 3 did not succeed to employment of employees of Nonindicted Co. 2, including the Defendants, while Nonindicted Co. 3 was in charge of the said mechanical maintenance, etc. on or around June 1, 2004; and on July 8, 2004, the ○ University Hospital promised all employees of Nonindicted Co. 2, Ltd. to be employed in any form by the end of 2004 and did not comply with the Defendants’ promise for some employees including the Defendants;
1. Joint:
From October 13, 2008 to December 2, 2008, the victim ○ University Hospital from around 10:30 to about 1 hour a day from around 10:30 to around 2, 2008, excluding Saturdays, did not comply with the victim's demand to leave from the victim while holding out relief such as "the restoration to the original state," "the bona fide negotiation," "the victim ○ University Hospital 1, a school-dong in Gwangju-gu, with a square frame set forth in the front part of the cremation of the building."
2. Defendant 1:
On October 10, 2008, an outdoor assembly report was filed with the Gwangju Dong Police Station to the effect that "the head of ○ University Hospital will hold a demonstration from October 13, 2008 to October 31, 2008," but on October 13, 2008, the reported place of assembly was clearly deviating from the place of assembly by holding the assembly as seen in the foregoing paragraph (1). < Amended by Presidential Decree No. 21144, Oct. 13, 2008; Presidential Decree No. 21354, Oct. 30, 2008>
1. Defendants’ partial statement
1. Legal statement of Nonindicted 1’s witness
1. Each police statement against Nonindicted 4
1. Investigation report (a copy of assembly report shall be attached);
1. Investigation report (Attachment of a site photograph) (Report on photographing a site photograph);
1. Article applicable to criminal facts;
Articles 319(2) and (1) and 30 of the Criminal Act (Article 22(3) and Article 16(4)3 of the Assembly and Demonstration Act shall be added to Defendant 1) (Article 319(2) and (1) of the Criminal Act (Article 22(3) and Article
1. Aggravation for concurrent crimes (Defendant 1);
Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act
1. Punishment (defendants 2, 3, 4);
Three months of imprisonment; and
1. Suspension of execution (Defendant 1);
Article 62(1) of the Criminal Act
1. Suspension of sentence (Defendant 2, 3, and 4);
Article 59(1) of the Criminal Act
1. The Defendants asserted that their acts do not constitute a crime of non-compliance with the eviction of the building at the above hospital. In the crime of intrusion upon the building or non-compliance with the eviction of the building, the Defendants asserted that their acts do not constitute a crime of non-compliance with the eviction of the building at the above hospital. In order to be a summary, the above summary should be clearly revealed that the manager installed doors and fences, etc. on the surrounding land adjacent to the building and provided the building for the use of the building within the boundaries of the outside. On the other hand, in general, the manager may demand the eviction of the building if it is necessary even at the open place, so if the manager requested the eviction of the act of non-compliance with the removal of the building at the outside of the Gu against his will, the crime of non-compliance with the removal should be established (see Supreme Court Decision 2003Do6133, Jun. 10, 2004, etc.).
However, according to each of the above evidence, the front of the chemical group is a part adjacent to the building of the ○ University Hospital, and the boundary between the above hospital and the outside is a fence, and it is recognized that there is a door and fence, or a tree, building, etc. play a fence, and it is clearly distinguishable from the hospital's premises. Thus, the front of the chemical group constitutes a summary of the building of the above hospital.
2. Defendant 1 asserts that an outdoor assembly or demonstration held in reality does not constitute an act clearly deviating from the scope of the reported place. In light of the purport of Article 16(4)3 of the Assembly and Demonstration Act, the issue of whether the assembly or demonstration in fact constitutes “an act clearly deviating from the scope of the reported purpose, date, time, place, method, etc.” under Article 16(4)3 of the same Act shall be determined by whether the assembly or demonstration considerably deviates from the scope anticipated by the report and makes it extremely difficult to achieve the purpose of the report system. In determining this, the freedom of assembly or demonstration is a citizen’s fundamental right guaranteed by the Constitution; the organizer of the assembly, etc. is unable to report all the detailed matters of the method of the assembly or demonstration in advance, and may have inevitable changes in the process of the assembly or demonstration, etc., and shall be determined by comparing the details of the report and actual circumstances individually, and then comprehensively, by examining them (see, e.g., Supreme Court Decision 2008Do3748, Mar. 28, 2008).
However, according to the above evidence, the place of assembly reported by the above defendant was four lanes adjacent to the above delivery side of the entrance of the above hospital, delivery outside of the side door, and the vehicle, etc. The place where the defendants actually convened was located within the extent of 15 to 20 meters (7.6 meters in the above defendant's assertion) from the entrance of the above hospital, and one building and five meters away from the above hospital's entrance, and four persons participating in the assembly were all of the defendants. In light of the general characteristics of the hospital and the demonstration method of the above defendants, it is reasonable to view that there is a qualitative difference between the two, even though the physical distance from the entrance of the above reported assembly (the boundary between the hospital and the outside) to the actual place of assembly (the boundary between the hospital) is not wide, and considering the relation, number, etc. of the defendants, it cannot be said that the movement of the above place is an inevitable act that clearly deviates from the scope of the reported demonstration place.
3. Therefore, we cannot accept all of the above arguments.
In light of the background leading up to the instant case, the negotiation between the ○ University Hospital and the Defendants on the implementation of the said promise was concluded smoothly, and the above hospital’s punishment was not imposed on the Defendants, and the Defendants 2, 3, and 4 did not have any record of punishment as well as the punishment was imposed once or three times.
Judges Choi Young-nam