According to Article 8(1) of the Assembly and Demonstration Act (hereinafter “Act”), the lower court acquitted the Defendant on the ground that only the prohibition of assembly and demonstration is prohibited within 48 hours from the receipt of the report, and the conditions for maintaining traffic order are not applicable, the lower court did not err by misapprehending the legal doctrine on the ground that the notice should be given within 48 hours from the receipt of the report, on the ground that the conditions for maintaining traffic order should also be notified within 48 hours from the receipt of the report.

2. Determination

A. The facts charged in this case

피고인은 2011. 8. 28. 10:30경 서울 서대문구 현저동에 있는 독립문공원 앞에서 전국금속노동조합이 ○○중공업 사태 해결을 촉구하기 위해 주최한 ‘희망만들기 깔깔깔-만민공동회’ 집회에 참석하여 서울 용산구 갈월동에 있는 남영로터리까지 행진하게 되었다.

On August 26, 2011, the commissioner of the Seoul Provincial Police Agency attached the condition of traffic order to promptly proceed with the above assembly using two lanes in the moving direction except the bus exclusive lanes. However, the defendant occupied three to four lanes in front of the National Police Agency located in Seodaemun-gu Seoul, Seomun-gu, Seoul, along with 800 participants in the above assembly at the roads of the National Police Agency in front of the Korean National Police Agency, in Seodaemun-gu, Seoul, with three to four lanes, and driven along the south Young-gu Seaside. On August 28, 2011, the defendant failed to dissolve the police station without delay even though he/she received an order of dissolution from the guard of the Seodaemun-gu Police Station and the head of the order of dissolution from the head of the Southwest-gu Police Station.

B. The judgment of the court below

The court below acquitted the defendant on the ground that the condition for maintaining traffic order under Article 12(1) of the Act is also applicable to Article 8(1) of the Act, and the head of the competent police authority should notify the organizer of an outdoor assembly or demonstration within 48 days from the date of receipt of the report within 48 days from the date of receipt of the report. However, in the assembly of this case, the notice was given after the lapse of 48 hours as stated in the facts charged, and thus, the dispersion order of this case cannot be deemed legitimate dispersion

C. The judgment of this Court

(1) Whether Article 8(1) of the Act applies to notification of the conditions for maintaining traffic order

Article 8 (1) 3 of the Act provides that "the head of the competent police authority who has received the report of an outdoor assembly or demonstration may, if deemed that such assembly or demonstration falls under any of the following subparagraphs, notify its organizer of the prohibition of such assembly or demonstration within 48 hours after receipt of the report." Article 12 (1) of the Act provides that "the head of the competent police authority may prohibit an assembly or demonstration from being conducted on the major roads of major cities prescribed by Presidential Decree, if deemed necessary for traffic flow, or restrict it with conditions for maintaining traffic order." Meanwhile, Article 8 (3) of the Act provides that "the head of the competent police authority may, in cases where such assembly or demonstration falls under any of the following subparagraphs and the resident or manager requests the protection of the facilities or place, notify its organizer of the prohibition or restriction of the assembly or demonstration, and in such cases, Article 8 (1) of the Act provides that "the prohibition or restriction of the assembly or demonstration shall apply mutatis mutandis only to cases where it is limited to the prohibition or restriction of Article 8 (1) through (12) of the Act."

(2) Whether the condition for maintaining the traffic order of the instant case constitutes a legitimate condition that may restrict the assembly of the instant case

The public prosecutor's prosecution of this case constitutes an assembly which clearly causes direct danger to the maintenance of order, such as traffic flow, in violation of the conditions for the maintenance of traffic order under Article 12 (1) of the Act, and thus, the head of the competent police authority ordered dispersion under Article 20 (1) of the Act, notwithstanding the order of dispersion under Article 20 (2) of the Act, since the defendant who is the participant of the assembly of this case's non-compliance with the order of dispersion under Article 20 (2) of the Act, the defendant's punishment under Article 24 subparagraph 5 of the Act is different. In order to punish the defendant as a crime of non-compliance with the order of dispersion under Article 20 (2) of the Act, first of all, the condition for the maintenance of traffic order as stated in the facts charged should be premised

On the other hand, Article 12(2) of the Enforcement Decree of the Act provides that "the head of the competent police authority shall, in cases where the conditions for maintaining traffic order are restricted with regard to an assembly or demonstration in a major city pursuant to Article 12(1) of the Act, notify the organizer in writing by specifying such conditions." Thus, in order for the conditions for maintaining traffic order to be a legitimate condition to restrict the assembly of this case, the head of the competent police authority shall be presumed to have known in writing the organizer of the assembly of this case of the above conditions as stipulated in Article 12(2) of the Enforcement Decree of the Act. However, the investigation report [the notice for maintaining traffic order (the Commissioner of the Seoul Special Metropolitan City Police Agency as the addressee of the National Metal Trade Union as the organizer of the assembly of this case is accompanied by a letter of public notice made by the conditions for maintaining traffic order on the assembly of this case, and there is no other evidence to acknowledge that the notice was received from the host of the assembly of this case on the receipt at the bottom of the above notice by the head of the competent police authority to maintain traffic order."

Therefore, the conditions for maintaining the traffic order of this case cannot be deemed a legitimate condition that can restrict the assembly of this case. Thus, the dispersion order of this case premised on the fact that the assembly of this case violated the above conditions cannot be deemed a legitimate dispersion order. Thus, the defendant cannot be punished as a crime of non-compliance with the dispersion order under Article 24 subparagraph 5 of the Act on the ground that the defendant refused to comply with such order.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judge Kang Sung-sung (Presiding Judge)