[2] The case where a “in-house assembly” held in a public structure such as a building or government office managed by another person is subject to dispersion order under the Act on Assembly and Demonstration

1. Regarding ground of appeal No. 1

A. Article 16(4)3 of the Assembly and Demonstration Act provides that a person who intends to hold an outdoor assembly or demonstration shall submit to the chief of the competent police station a report stating the purpose, date, time, place, organizer, person in charge of liaison, address, occupation, and contact address of moderators, organization and number of persons scheduled to participate, and method of demonstration (Article 6(1)). Article 16(4)3 of the Assembly and Demonstration Act provides that an organizer of an assembly or demonstration shall not engage in any act clearly deviating from the scope of the reported purpose, date, time, place, method, etc. (Article 22(3)). As such, the Assembly and Demonstration Act requires an outdoor assembly or demonstration to be reported in advance, and imposes punishment for acts deviating from the reported scope, but it does not stipulate that reporting on indoor assembly should be reported on indoor assembly. Accordingly, an outdoor assembly is held in excess of the scope of an outdoor assembly that is to be held in the process of holding an outdoor assembly or demonstration outside the boundary of its report.

B. The court below found the Defendant guilty of this part of the charges on the ground that the Defendant did not hold an outdoor assembly at the place reported by the Defendant, Nonindicted 1, 2, and 7, and the members of the Korea Air Transport and Industry Workers' Airport Headquarters, the Korea Airport Port Authority, and 121 members of the Busan and Ulsan District Association (hereinafter referred to as the "YYA") but opened an indoor assembly without holding an outdoor assembly at the place reported by the Defendant and Nonindicted 1, 2, and 7, and the members of the Busan and Ulsan District Association, and opened the assembly within the building of the Busan Labor Office as soon as contact among the participants in advance, and opened an indoor assembly on the first floor, even if there was an unlawful violation of Article 16(4)3 of the Assembly and Demonstration Act without permission by others, even if it did not constitute violation of Article 16(4) of the Assembly and Demonstration Act.

Examining the reasoning of the judgment below in light of the aforementioned legal principles, the above judgment of the court below is just, and there is no error of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or of misapprehending the legal principles on outdoor assembly beyond the above reported scope, as otherwise

2. Regarding ground of appeal No. 2

A. The summary of this part of the facts charged is that the Defendant, along with Nonindicted 1, 2, and 3, and 121 union members of the Busan District Court in order to hold an interview with the head of the Busan District Labor Agency on October 13, 2009, when demanding an interview with the head of the Busan Labor Agency on the part of the Defendant, who was delegated by the head of the Busan District Labor Agency during the assembly on the part of the head of the transportation guard delegated by the head of the Busan District Labor Agency in order to disturb the order and disrupt the building of the Busan Labor Agency, and that the Defendant did not dissolve the Defendant without delay, even though he was ordered to do so three times on the ground that he continued the assembly that he had been unable to maintain the order by clearly going beyond the bounds of the place, method, etc. of the reported assembly.

The court below found the defendant guilty of this part of the facts charged on the ground that the act of the defendant et al. stated in the facts charged does not constitute "an act disturbing order by assault, threat, destruction, fire prevention, etc." under Article 16 (4) 2 of the Assembly and Demonstration Act, unless the defendant et al. committed an act of entering Busan Labor Office resulting in a crime of intrusion against the will of the building manager, unless it is added to a separate act of assault, threat, damage, or fire prevention. Further, the assembly of this case does not constitute "an assembly which cannot maintain order" under Article 20 (1) 5 of the Assembly and Demonstration Act, and it cannot be deemed that the assembly of this case constitutes "an assembly which cannot maintain order" under Article 20 (4) 5 of the Assembly and Demonstration Act.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) The freedom of assembly is fundamental right guaranteed by the Constitution. However, if necessary for national security, maintenance of order, or public welfare, it may be limited by law to the extent that it does not infringe on its essential contents (Article 37(2) of the Constitution). Article 37(2) of the Assembly and Demonstration Act provides that the Assembly and Demonstration Act requires voluntary dispersion in certain cases, such as “an assembly which is unable to maintain order due to an act that disturbs order by violence, intimidation, destruction, fire prevention, etc.” and the order of dispersion may be ordered in such context (Article 20(1) of the Assembly and Demonstration

Meanwhile, an indoor assembly may be held without a prior report under the Assembly and Demonstration Act, but if it is necessary for the protection of other important legal interests, its freedom may be restricted. Therefore, even in a case where an indoor assembly is held in a building managed by another person, it shall be deemed as an object of dispersion order in a case where the assembly’s purpose, purpose, number of participants, method of assembly, behavior, etc., such as falling under Article 20(1)5 and Article 16(4)2 of the Assembly and Demonstration Act, which makes it impossible to maintain order by causing violence, intimidation, damage, or fire-prevention, etc. (Article 20(1)5 and Article 16(4)2 of the Assembly and Demonstration Act) causes direct and apparent danger to other person’s legal interests or public peace and order. Even if the place of assembly is indoor of a public structure, such as a government office, etc., even if it is not a place where the opening of the assembly is permitted, it shall be deemed as being the object of dispersion order exceeding the scope of freedom of assembly activities guaranteed.

(2) According to the reasoning of the lower judgment and evidence duly admitted by the lower court, the following facts were revealed. ① The Busan Labor Office, the Busan Labor Department and the Busan Labor Department’s 2nd 1st 5th 2nd 1st 2nd 1st 2nd 3th 4th 1st 3th 1st 3th 1st 1st 5th 1st 1st 3th 1st 200 1st 1st 3th 1st 200 2nd 1st 1st 5th 3th 1st 200 2nd 1st 1st 3th 1st 200 2nd 1st 1st 3th 1st 200 2nd 1st 3th 1st 1st 200 2nd 3th 1st 1st 20 3th 1st 1st 3th 200 2nd 3th 1st 3th 20th 3th 1st 3th 3th 200.

(3) Various circumstances revealed by the above facts, i.e., the Busan Labor Office’s public office conducting public affairs, such as employment stability and mediation of labor-management disputes, and it is difficult to view it as an open place where the general public or civil petitioners, etc. are allowed to arbitrarily hold an assembly within the building. The defendant, etc. led by the defendant, etc. to allow union members to enter the space of the assembly of this case, the purpose and size of the assembly of this case, the method and duration of the assembly, the size and structure of the space of the building in which the assembly of this case was held, the size and structure of the petitioner’s access to the building in this case, the degree that there was interference with the public official’s official’s performance of duties, and the progress of the assembly of this case. In full view of the above circumstances, the defendant, etc.’s unauthorized intrusion into the above Busan Labor Office without permission, and the demand for withdrawal is not complied with, thereby failing to comply with the demand for withdrawal, and thus, it is sufficient to maintain public peace and order.

Nevertheless, the court below concluded that the assembly of this case does not have legitimate grounds for dispersion order. Thus, the court below erred in the misapprehension of legal principles as to the requirements and objects of dispersion order under the Assembly and Demonstration Act, which affected the conclusion of the judgment. The grounds for appeal pointing this out are with merit.

3. Therefore, the part of the judgment of the court below regarding the violation of the Assembly and Demonstration Act due to the failure to comply with the dispersion order against the defendant 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 Yang Chang-soo (Presiding Justice)