Seocho-gu Seoul

Law Firm Woo, Attorney Park In-bok

[Defendant-Appellee]

A decoration for the use of the litigation performer, a mathical stone, and a novel;

2. The costs of the lawsuit shall be borne by the defendant.

가. 서울특별시 중구청장 ( 이하 ' 중구청장 ' 이라 한다 ) 은 2013. 4. 4. 서울 중구 태평로2가에 위치한 덕수궁 대한문 옆 인도에 화단 ( 이하 ' 이 사건 화단 ' 이라 한다 ) 을 조성하였 나. 민주사회를 위한 변호사모임 ( 이하 ' 민변 ' 이라 한다 ) 노동위원회 」 의 위원장인 원고는 2013. 7. 11. 피고에게 아래와 같은 내용의 옥외집회신고를 하였다 ( 이하 ' 이 사건 신고 ' 라 하고, 그 신고된 집회를 ' 이 사건 집회 ' 라 한다 ) .○ 집회명칭 : 집회를 원천봉쇄하기 위한 화단 설치 규탄 및 위법한 경찰권 남용으로 집회 금지구역이 되어 버린 화단 앞과 옆 장소에서의 집회의 자유 확인을 위한 집회○ 개최목적 : 경찰력의 남용으로 인해 집회 금지 장소가 된 화단 옆과 앞의 장소 ( 별지1 집회 신고 고장소 ) 도 집회의 자유가 있는 민주공화국의 자유로운 공간임을 확인하고, 이를 시민들 들에게 보여주며, 쌍용자동차 희생자 분향소 설치를 금지하기 위하여 설치된 대한문 앞화단 조성의 위법성을 평화로운 방법인 집회와 강연을 통해 알리기 위함임 .○ 개최일시 : 2013. 7. 15. ( 월 ) ~ 2013. 7. 22. ( 월 ) * 토요일과 일요일 제외2013. 7. 24. ( 수 ) ~ 2013. 7. 26. ( 금 )각 일의 17 : 00 ~ 21 : 00○ 개최장소 : 매표소가 있는 돌담이 꺾이는 부분으로부터 광화문 방향으로 지하철 1, 2호선 시청역원형 엘리베이터 지상 탑승구까지의 인도 중 화단 경계로부터 폭 1. 5m 부분. 단, 대한문 정문 쪽은 폭 3m ( 별지1 참조 )○ 주최자 : 민주사회를 위한 변호사모임 노동위원회 ( 위원장 원고 )○ 주최단체 대표자 : 원고ㅇㅇㅇㅇㅇ ○ 질서유지인 : 김종보, 김동현, 류하경○ 참가예정단체 : 민주사회를 위한 변호사모임 등 다수의 시민단체, 노동단체○ 참가예정인원 : 30여명○ 시위 ( 행진 ) 방법 : 없음○ 시위 ( 행진 ) 진로 : 없음( 진행순서 ) 17 : 00 ~ 21 : 00 강연 및 집회 시작( 준비물 )1. 플래카드 1개규격 : 0. 9m×3m내용 : 집회 통제를 위한 화단 설치의 위법성 규탄과 집회의 자유 회복을 위한 시민 한마당2. 피켓 : 있음3. 머리띠 : 있음4. 앰프, 스피커, 마이크 등 음향장비 : 있음5. 유인물 : 있음6. 분 분향물품 : 있음 ( 분향로, 촛불, 향, 돗자리, 간이 탁자, 24명의 영정 사진 )7. 스크린 또는 이동식 화이트보드 : 있음8. 빔프로젝터 : 있음9. 선전용 판넬 : 있음10. 간이 플라스틱 탁자 : 3 ~ 5개11. 간이 플라스틱 의자 : 20 ~ 30개다. 피고는 2013. 7. 12. 「 집회 및 시위에 관한 법률 」 ( 이하 ' 집시법 ' 이라 한다 ) 제12조 제1항에 따라 원고에 대하여, 원고가 신고한 집회 장소가 집시법상 주요도로 ( 세종대로, ( 구 ) 태평로 } 에 해당하고, 서울특별시 중구청 ( 이하 ' 중구청 ' 이라 한다 ) 에서 조성한 이 사건 화단 등으로 인해 주변 인도 폭이 매우 협소하며, 평소 덕수궁 관람객 · 횡단보도 이용 시민 · 일반 통행인 등이 많아 매우 혼잡하다는 이유로, ① 별지2 도면과 같이 ' 광화문 방향 지하철 1, 2호선 시청역 원형엘리베이터 지상 탑승구까지의 구간 ' ( 이하 ' 이 사건 금지구역 ' 이라 한다 ) 을 제외하고, 덕수궁 대한문 정문 쪽 ( 이 사건 화단 우측, 광화문과 반대 방향 ) 인도 ( 별지2 도면 중 빗금 친 부분, 이하 ' 이 사건 허용구역 ' 이라 한다 ) 에서 개최하며, ② 준비물로 기재한 간이 탁자, 돗자리, 간이 플라스틱 탁자 3 ~ 5개, 간이 플라스틱 의자 20 ~ 30개 ( 이하 통틀어 ' 이 사건 물건 ' 이라 한다 ) 는 도로법 제38조, 도로교통법 제68조 등 법령에 위반되므로 사용하여서는 안 된다고 통보 ( 이하 ' 이 사건 처분 ' 이라 한다 ) 하였다 .

D. Meanwhile, while filing the instant lawsuit on July 15, 2013, the Plaintiff applied for the suspension of the validity of the instant disposition as the court 2013 Ab286. On July 22, 2013, the court accepted the Plaintiff’s application and rendered a decision to suspend the validity of the instant disposition until the instant judgment is rendered, and accordingly, rendered a decision to suspend the validity of the instant disposition until the instant judgment is rendered

On July 24, 2013 and July 25, 2013, the Plaintiff organized an assembly.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion 1)

The number of participants in the assembly of this case is less than 30 persons, and delivery by the question of the Sodukgun is about 4-5 meters wide. Among them, the place of assembly reported by the plaintiff is about 1.5 meters, and since the case was excluded from braille block for the visually disabled, the assembly of this case does not constitute a case where there is no risk that the passage of the visually disabled would be impeded, thereby causing a direct danger to the traffic flow of the third class.

Since the road occupation and use refers to the use of a specific part of the road for a specific purpose in a tangible and fixed manner, the installation of the goods of this case at the assembly site for temporary use in the assembly of this case does not constitute the road occupation and use, and pursuant to Article 38 of the Road Act, Article 28(5) of the Enforcement Decree of the Road Act, and Article 2 of the Seoul Metropolitan Government Ordinance on the Permission for Occupation and Use of Road and the Collection of Occupancy Charges, etc. (hereinafter referred to as the "Ordinance of this case"), the goods of this case are not subject to the permission for occupation and use. In addition, the use of the goods of this case during the assembly of this case does not violate any provision of Article

The instant disposition pointed out that it is unreasonable for the Defendant who has obstructed the assembly in the instant prohibited area by placing police officers in front of the instant prohibited area, and that it arbitrarily designated the place of assembly as a matter of the content and purpose of the instant assembly, which seeks to identify such circumstances to citizens, and went beyond the inherent limit of the assembly report system.

Therefore, the instant disposition is unlawful.

2) Defendant’s assertion

The next delivery to the sub-conscept is not only narrower in width among the surrounding delivery due to the road structure itself and the paintings, etc. of this case, but also in contact with the crosswalks, and the number of people intending to view the sub-conscepts is large. The opening hours of the meeting of this case are equal to the time from 5 p.m. to 9 p.m. time. Furthermore, the instant prohibition zone where assembly is restricted by the instant disposition, which is a place where assembly is restricted, is carried out for the purpose of preventing and spreading the surrounding police officers from being in contact with the main purpose of the meeting of this case. Furthermore, it is clear that the instant prohibition zone where assembly is held illegally from April 2012 to 9 p.m., the two vehicle safety countermeasures committee (hereinafter referred to as the "sponsory") installed a tent and a branch office and installed illegally, and physically conflicts with the employees of Jung-gu Office and its removal, or is likely to do so, in the future, to hold the assembly of this case and its neighboring police officers with a view.

The instant permissible zone is included in the place of assembly reported by the Plaintiff, and it cannot be deemed as a separate place from the perspective of ordinary citizens who passed around the meeting. Therefore, there is no big difference in the degree of impact on the formation of public opinion by collectively expressing their opinions and arguments through an assembly.

The instant article prohibited the Defendant from using is merely a part of the prepared article reported by the Plaintiff, and the Defendant did not prohibit the use of flass, diskettes, head belts, sound equipment, etc., which can be deemed the most general means for collective expression, so there is no obstacle in achieving the objective of the instant assembly. In addition, given that the instant article has no choice but to occupy and use a road, including delivery, due to its nature, it constitutes a violation of the Road Act if the instant article does not obtain permission to occupy and use a road, and thus, it constitutes an article that could interfere with traffic.

Therefore, the instant disposition is lawful.

B. Relevant statutes

Attached Form 4 is as shown in the relevant statutes.

(c) Fact of recognition;

1) On March 6, 2013, the two-use subrogation, which had been convened to commemorate the victims of the layoff of two motor vehicles in front of the Taedukgun, installed a tent next to India. However, on March 3, 2013, ○○○ installed fire prevention, which had been held between the wall of the said tent and the Taeduk palaces with a tent with a tent and a banner, and moved it to the wall of the said tent (Seoul Central District Court Decision 2013Da289, Seoul High Court 2013No2495). Accordingly, the Administrator of the Cultural Heritage Administration prevented the head of the Gu from damaging the historical and cultural environment of the Republic of Korea on March 6, 2013, and prevented the assembly and demonstration of the cultural heritage of this case from being damaged by the police officers’ request for the installation of a long-term demonstration and strengthening of illegal facilities in the region where illegal facilities were installed, such as the fire area in front of the Taeduk palaces, etc.

3) On the other hand, on July 6, 2013, Lee Dong-dong Labor Relations Commission, held an assembly with the same or similar purpose as the instant assembly on the other hand, the organizer of the assembly (the chairperson of the Labor Relations Commission); the date and time from July 11, 2013 to July 22, 2013 (excluding Sundays) and each day from July 24, 2013 to July 26, 2013: 17:0:0 to 00; 21:00, the venue of the assembly, including the instant prohibited zone, are as shown in the attached Form 3; the organizer again submitted the assembly report to the effect that the assembly is closed from the pluckle to the subway in the direction of subway; 5m of the assembly to the place of the assembly, which is a short-scale list of objects from the police officer’s opening of the assembly, and 5m of the assembly to the place of the assembly, excluding the assembly in its original form.

4) On July 10, 2013, the Defendant notified the Plaintiff on the following grounds: (a) on the part of the Plaintiff, delivery next to the written question of the Sodukgun, which is the place of assembly reported by the Plaintiff, falls under the main roads of the Act; (b) the width of delivery is very narrow due to the instant chemical group; and (c) the citizens, general visitors, and visitors to the crosswalks are highly complicated; and (d) on the ground that the above assembly might pose a direct risk to the flow of surrounding traffic, the Defendant held a meeting in the instant permitted zone and notified the Plaintiff of the non-use of the fact that a simplified sod, prone, prone goods, a simplified consignee, and a chair are in violation of the Act and subordinate statutes, such as Article 38 of the Road Act and Article 68 of the Road Traffic Act.

5) As shown in attached Form 1, July 11, 2013, the Plaintiff filed the instant report by reducing the assembly place from the instant chemical group to the relocation of braille block for visually disabled persons to about 1.5 meters in the case of delivery by side of the Seodaemun-gu, the Defendant permitted the assembly at the place of assembly (three meters from the boundary of the instant chemical group) and the Seocho-gu, the Plaintiff filed the instant report by excluding a simple wave guide, which appears to cause inconvenience to traffic, from the preparations.

16) India next to the Taeduk-gun's first outdoor assembly reported by the Plaintiff, i.e., delivery prior to the chemical of this case, the width of which is about 4-5 meters.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 3, 4, 5, and 7 and the purport of the whole pleadings

D. Determination

1) The constitutional meaning and function of freedom of assembly

Article 21 (1) of the Constitution of the Republic of Korea provides that "all citizens shall have the freedom of speech and publication, and freedom of assembly and association," thereby guaranteeing the freedom of expression, which is a fundamental right for exchanging opinions with others, as a fundamental right of the people. In other words, the Constitution guarantees the freedom of assembly as a fundamental right of the people, thereby guaranteeing the freedom of assembly as a fundamental right of the people, that peaceful assembly itself shall not be evaluated as a danger or violation against public safety and order, and that the inconvenience to the general public and the danger of legal interests arising inevitably from the collective exercise of the freedom of assembly shall be approved by the State and third parties to the extent consistent with the protected legal interest.

The freedom of assembly has a dual function of forming an individual’s personality and democracy. First, within the framework of our Constitution that takes the dignity of human beings and free character into the highest value, the freedom of assembly is also one of the fundamental rights that contribute to the realization of individual self-determination and personality. To seek contact with others, exchange thoughts with one another, and create personality jointly, it belongs to the most fundamental human desire. The freedom of assembly is one of the fundamental rights that guarantees the freedom to jointly create personality with other persons in order to realize personality, i.e., the right to jointly create personality through exchange of opinions with other persons, and is one of the fundamental rights that can be protected by the State by the Constitution from being isolated from the society. Second, the freedom of assembly is one of the fundamental rights that can be protected by the Constitution as an individual’s own in order to realize common character. The freedom of assembly and demonstration is one of the fundamental rights that can be protected by the Constitution in order to protect the freedom of assembly and demonstration of public opinion in a way that allows the people to participate in an assembly and demonstration of public opinion.

In light of the constitutional meaning and function of the freedom of assembly as seen earlier, and the following circumstances that can be seen by comprehensively taking into account the entire purport of the pleadings, it does not seem to have a risk of direct danger to traffic flow as Class III even if an assembly is held in the prohibited area of this case. Accordingly, the instant disposition is unlawful.

① Freedom of assembly guarantees the right to decide on the time, place, method, and purpose of assembly by itself. That is, major acts specifically protected by freedom of assembly are the preparation and organization of assembly, direction, participation, place and time of assembly, and so the organizer may freely decide on the subject, purpose, place and time of assembly (see the above Decision 200HunBa67, 83 (Joint)).

② The place of assembly has a special symbolic meaning. In general, the place of assembly is determined as a place where an object intended to oppose the assembly (such as a nuclear power plant, waste incineration plant, etc.) is located or where an event giving an opportunity to attend the assembly occurred (for example, the office building of the government agency that issued the decision on problems). Moreover, since the purpose and contents of the assembly are generally in close relationship with each other, there are many cases where the selection of the place of assembly is decided on the result of the assembly. If an assembly is taken at a place where the opinion expressed in the assembly is not paid attention by the state power, the importance of the freedom of assembly is clearly revealed in that the protection of fundamental rights would lose its effect. As such, since the purpose and effect of the assembly are important, anyone can freely decide on the “place of assembly” as a matter of principle, the freedom of assembly should be guaranteed only when it is decided on the one’s own plan at a certain place, and it is not justified (see, e.g., Supreme Court Decision 2008Hun-Ba.).

③ In order for the central government to fundamentally cut off illegal assemblies and demonstrations in front of the Sodmons of Taeduk-gu, the head of the central government set up the chemical group of this case, and thereafter, police officers around the chemical group of this case without any omission a day are subject to restrictions on the peaceful and non-vietative assemblies and demonstrations protected under the Constitution. The purpose of the assembly of this case is to confirm that the prohibited zone of this case is a space in which the freedom of assembly is guaranteed under the Constitution and to inform citizens of this fact. Since the prohibited zone of this case is closely related to the purpose and contents of the assembly of this case, it is very important for the assembly of this case.

④ Article 12(1) of the Assembly and Demonstration Act provides that “The head of the competent police authority may prohibit an assembly or demonstration on major roads of major cities if deemed necessary for traffic flow, or restrict an assembly or demonstration with conditions for maintaining traffic order attached thereto.” However, an assembly temporarily gathered in a certain place under the purpose of externally expressing an opinion by forming a common opinion by a specific or unspecified number of people, may not cause inconvenience to the general public to a certain extent or interfere with traffic flow, unless the assembly is held in a place where no one passes at any time.” The restriction on freedom of assembly guaranteed by the Constitution may be limited to cases where it is essential for protecting other important legal interests and interests. In order to restrict an assembly by attaching conditions for maintaining traffic order pursuant to Article 12(1) of the Assembly and Demonstration Act, the assembly in question shall be deemed to fall under cases where traffic communication is seriously impeded by the assembly in question.

In this case, in consideration of the following facts: ① the Defendant’s delivery of the sub-instigious wombs, including the instant prohibition zone reported by the Plaintiff to the place of assembly, is about 4-5 meters in width; whereas the instant prohibition zone is merely about 1.5 meters from the instant chemical group to the street block for the visually disabled; ④ The number of participants expected to participate in the instant assembly is not only more than 30 persons, but also it is anticipated that the participants will sit in the assembly and sit in the assembly place or move in the assembly, and the assembly goods, such as ampers, screen, etc., which are likely to interfere with the passage of citizens, are to be used in the right door of the sub-instigious womb, it is difficult to see that the surrounding traffic flow is seriously impeded even if the instant assembly is held in the prohibited zone.

⑤ In the instant lawsuit, the Defendant appears to have added the grounds for disposition by asserting to the effect that the instant prohibited zone might cause physical collision with employees of Jung-gu Office who intend to install a tent and a fright, and remove it, or repeated violence and damage in a collective zone for more than one year from April 2012. It is probable that such an event may occur in the future, and thus, there is a need to prohibit assemblies in the instant prohibited zone. However, the grounds for which the Defendant initially used as the grounds for disposition in the instant disposition are likely to directly cause danger to surrounding traffic. As such, it is difficult to view the foregoing grounds as the grounds for disposition to be identical in light of the foregoing, and it is difficult to view that the Defendant’s use of the instant prohibited zone as the grounds for disposition is not permissible (i) the organizer of the instant assembly, even if it is allowed to add the grounds for disposition, in light of the fact that the Plaintiff’s use of the instant motor vehicle constitutes a place of assembly, public opinion and public opinion for the purpose of development of the assembly, association, etc., which was established by the following the following the assembly and public opinion.

1. Article 38(1) and (2) of the Road Act, Article 28(5) of the Enforcement Decree of the Road Act, and Article 2 of the Ordinance of this case stipulate the structures, goods, or facilities subject to permission to occupy and use a road. Since the instant objects do not fall under any of them, they are not subject to permission to occupy and use a road.

In addition, Article 68 of the Road Traffic Act provides a prohibited act on the road, and among them, Article 68 of the Road Traffic Act provides that "any person shall not leave articles that might interfere with the traffic in the road without permission," and it is difficult to view it as "the use of the table, chair, fat, etc. on the road without permission," when holding an assembly.

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Judges Kang Jeong-hee

Judges Jeon Sung-sung

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.