[2] In a case where an assembly or demonstration, which has completed a lawful report pursuant to the Assembly and Demonstration Act, considerably exceeded the scope of the initial report, or where the passage of the assembly or demonstration is impossible or considerably difficult by obstructing road traffic by seriously violating the conditions under Article 12 of the same Act, whether the assembly or demonstration constitutes a general traffic obstruction (affirmative), and the elements for establishing a general traffic obstruction by a participant (affirmative)

[3] The elements to establish a general traffic obstruction in a case where the legal nature of the general traffic obstruction and the timing and time of completion/report considerably exceeded the bounds of the general traffic obstruction, or the participation in an assembly causing traffic obstruction by seriously violating the conditions under Article 12 of the Assembly and Demonstration Act, but the traffic obstruction had already been obstructed by other participants at the time of participation, and the traffic flow had already been obstructed by other participants

The freedom of assembly and demonstration is a fundamental right of the people guaranteed by the Constitution, and in applying the general traffic obstruction under the Criminal Act to the participants in an assembly and demonstration, there may arise an unreasonable restriction on the freedom of assembly and demonstration. However, given that the method of interference with traffic in general traffic obstruction is comprehensively prescribed as above, if an assembly and demonstration are conducted on the road, there is a risk of direct infringement on the traffic safety of the general public, the general traffic obstruction may be established, barring any special circumstances, when accompanied by traffic obstruction by an assembly or demonstration.

[2] Even if an assembly or demonstration which has completed lawful reports pursuant to the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”), where the scope of the initial report is considerably exceeded, or where the passage is impossible or considerably difficult due to a serious violation of the conditions under Article 12 of the Assembly and Demonstration Act by obstructing road traffic, it constitutes a general traffic obstruction under Article 185 of the Criminal Act. However, all participants are not established as a matter of course, but a general traffic obstruction is not established against all participants. In fact, a direct act causing traffic obstruction by considerably exceeding the scope of the report as mentioned above or by seriously participating in a serious violation of the conditions, or the participant’s participation or degree of involvement, etc., if the participant can be held liable for the crime of common traffic obstruction in light of the circumstances and degree of participation by the participant.

[3] General traffic obstruction is a so-called abstract dangerous crime in which traffic is impossible or considerably difficult, and it is not necessary to have the result of traffic obstruction actually occurred. In addition, traffic obstruction in general traffic obstruction acts have the nature of continuous crime. As such, as long as traffic obstruction continues, the state of statutory illegality continues to exist. Therefore, in a case where traffic obstruction is involved in an assembly causing traffic obstruction by significantly exceeding the reported scope or seriously violating the conditions under Article 12 of the Assembly and Demonstration Act, if it is deemed that the traffic obstruction continues to exist in collusion with other participants who caused traffic obstruction, even if the traffic flow has already been obstructed by other participants at the time of participation, if it can be deemed that the traffic obstruction continues to exist in such unlawful state of traffic obstruction.

1. Article 185 of the Criminal Act provides, “A person who damages, destroys, or destroys a road, waterway, or bridge, or obstructs traffic by other means shall be punished by imprisonment with prison labor for not more than ten years, or by a fine not exceeding 15 million won.” The purpose of general traffic obstruction is to punish not only a crime under the protection of the law of traffic safety for the general public, which damages or makes it impossible to pass through a road, etc., but also any act that makes it impossible or remarkably difficult to pass through by interfering with traffic by other means (see Supreme Court Decision 2003Do4485, Oct. 10, 200).

The freedom of assembly and demonstration is a fundamental right of the people guaranteed by the Constitution, and in applying the general traffic obstruction under the Criminal Act to the participants in an assembly and demonstration, there may arise an unreasonable restriction on the freedom of assembly and demonstration. However, given that the method of interference with traffic in general traffic obstruction is comprehensively prescribed as above, if an assembly and demonstration are conducted on the road, there is a risk of direct infringement on the traffic safety of the general public, the general traffic obstruction may be established, barring any special circumstances, when accompanied by traffic obstruction by an assembly or demonstration.

Even if an assembly or demonstration which has completed lawful reports pursuant to the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”), where the scope of the initial report is considerably exceeded, or where the passage is impossible or considerably difficult by interfering with road traffic due to serious violation of the conditions under Article 12 of the Assembly and Demonstration Act, general traffic obstruction under Article 185 of the Criminal Act is established (see, e.g., Supreme Court Decision 2006Do755, Nov. 13, 2008). However, even if all participants are not established, general traffic obstruction is not established as a matter of course against all participants. In fact, the participants’ direct act of interference with traffic by significantly exceeding the scope of the report as mentioned above, or by participating in a serious violation of the conditions, or in light of the circumstances and degree of participation of the participants, etc., the general traffic obstruction is established (see, e.g., Supreme Court Decision 2016Do4291, Nov. 10, 2016).

On the other hand, general traffic obstruction is an abstract dangerous crime, where traffic is impossible or considerably difficult, and the result of traffic obstruction does not have to be practically caused (see Supreme Court Decision 2004Do7545, Oct. 28, 2005, etc.). In addition, traffic obstruction in general traffic obstruction is deemed to have the nature of continuous crime, and the traffic obstruction continues to exist so as to have the nature of continuous crime. Therefore, in a case where traffic obstruction continues to exist as long as the state of traffic obstruction continues to exist. Accordingly, even if the traffic obstruction was considerably exceeded the reported scope or where the traffic flow was obstructed by the serious violation of the conditions under Article 12 of the Assembly and Demonstration Act, if it can be evaluated that the traffic flow had already been obstructed by other participants at the time of participation, and it can be said that the traffic obstruction had continued to exist by implied and net conspiracy with other participants causing traffic obstruction, it is established as a general traffic obstruction.

2. The lower court reversed the judgment of the first instance that found the Defendant guilty on the following grounds that the evidence submitted by the prosecutor alone was insufficient to recognize the instant facts charged, and acquitted the Defendant.

A. On November 14, 2015, the Defendant recognized only the fact that he had been at the place of the instant demonstration from around 15:00 to 16:00, and the evidence submitted by the prosecutor alone is insufficient to recognize the fact that the Defendant participated in the instant assembly from around 14:00 to 18:50, as stated in the facts charged.

B. The Defendant did not participate in a prior assembly, and at around 15:00, the Defendant asserted that the instant demonstration was combined, and the police already installed a wall on the road to completely block traffic in the vicinity thereof. As such, it is highly likely that the traffic of the vehicle could have been completely controlled in the vicinity of the Defendant’s place of movement prior to the consolidation with the demonstration team.

C. It should be deemed that a large number of people driving along a road in which the traffic flow has already been completely cut off does not cause an abstract risk of traffic obstruction. In a situation where the traffic flow has been completely cut off, it cannot be deemed that the Defendant walked on the road, which alone caused the danger of traffic obstruction. Moreover, the Defendant cannot be held liable for the traffic obstruction by other participants in assemblies prior to the installation of a wall to the Defendant, who joined the demonstration after the vehicle occupation of the participants. Unless there is any evidence that the Defendant conspired in advance with other participants in assemblies, a joint principal offender cannot be held liable for the traffic obstruction.

3. We examine the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted.

The reasoning of the lower judgment that the Defendant did not constitute a co-principal of conspiracy on the grounds that the Defendant joined the demonstration team or did not have any prior conspiracy in the situation where traffic flow was obstructed is inappropriate. However, the lower court’s conclusion that the Defendant cannot be held liable for the charge of obstruction of general traffic as a co-principal is acceptable. In so determining, 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 legal doctrine on co-principal of obstruction of general traffic, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the prosecutor's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)