[2] In a case where the defendant participated in an outdoor assembly held at a place where assembly is prohibited, and was arrested as a riot police officer Gap and became arrested as an flagrant offender Gap and became on board the escort bus immediately, the case holding that notice was given under Article 200-5 of the Criminal Procedure Act in light of the situation of the assembly and the process of arresting flagrant offenders, etc.

[3] Whether a specific notification should be given as to whether the grounds for dissolution falls under any of the subparagraphs of Article 20(1) of the Assembly and Demonstration Act when an order for dispersion is issued under the same Act (affirmative)

[2] The case holding that in case where the defendant participated in an outdoor assembly held at a place where assembly is prohibited, the police officers called up for 70 riot police officers at the time to arrest the participants in the assembly and arrested nine persons as flagrant offenders, and the defendant was notified of the summary of the crime, the reason for the arrest of the police officers and the reason for the arrest of the flagrant offender and the opportunity for defense to appoint defense counsel in the process of arresting the riot police officers Gap, in light of the situation of the assembly, the process of the arrest of the flagrant offender, and the time when the principle of non-speak was announced, the notification under Article 200-5 of the Criminal Procedure Act was made during the process of the arrest of the flagrant offender.

[3] Although Article 20(1) of the Assembly and Demonstration Act and the Enforcement Decree of the Assembly and Demonstration Act (hereinafter “Enforcement Decree of the Assembly and Demonstration Act”) explicitly stipulate the grounds for the dispersion order, it shall be in harmony with the guarantee of the right to an assembly and demonstration and the public safety and order by guaranteeing the maximum extent of lawful assembly and demonstration and by protecting citizens from unlawful demonstration, the dispersion order system as above is for the purpose of ensuring a proper balance between the guarantee of rights to an assembly and demonstration and the public peace and order. Thus, it is necessary for state agencies to specifically present legal grounds for ordering dispersion in order to order the dispersion of an already underway assembly and demonstration. Article 17 of the Enforcement Decree of the Assembly and Demonstration Act, which provides for matters necessary for the demand for dispersion and the notice of dispersion order, etc. by delegation of Article 20(3) of the Assembly and Demonstration Act, must first demand the organizer, etc. before the dispersion order is given, and if the participants of an assembly and demonstration continue the assembly and demonstration, the voluntary dispersion order or dispersion order shall be made within the specific scope of the aforementioned reasons for voluntary dispersion or dispersion.

1. As to the Defendant’s ground of appeal

A. Article 11 Subparag. 1 of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) provides that “no one shall hold any outdoor assembly or demonstration at a place within 100 meters from the boundary of each court”, and Article 23 punishs those who hold an outdoor assembly or demonstration in violation of the foregoing prohibition provision or participate in the assembly or demonstration with the knowledge of such fact. In order to achieve the court’s function and purpose of legislation, which is to protect the peace and security of the courts actively requested, this provision sets up an absolute prohibition zone against outdoor assembly or demonstration that does not recognize exceptions to the courts nearby each court. As such, an outdoor assembly or demonstration at a district where an outdoor assembly or demonstration is prohibited in the vicinity of each court is prohibited regardless of individual and specific danger situation, even if it is not directly subject to the court (see, e.g., Constitutional Court en banc Decision 2004Hun-Ga17, Nov. 24, 2005; Constitutional Court en banc Decision 2006Hun-Ba13, Dec. 29, 2009).

Based on its employed evidence, the court below acknowledged that the defendant participated in the assembly of this case with 150 members of the labor union from April 30, 2009 to 22:10 meters from the Supreme Court, and held a candlelight in the meaning of supporting the former president of the labor union who is being investigated by the Supreme Prosecutors' Office in front of the cafeteria, Seoul Central District Prosecutors' Office, which is the place where the outdoor assembly is prohibited, as an area located within 100 meters from the Supreme Court. The court below held an assembly of this case by means of free speech and singing production (hereinafter "the assembly of this case"). The court below held that the defendant's participation in the assembly of this case was in violation of Article 111 subparagraph 3 and Article 112 subparagraph 3 of the Assembly and Demonstration Act even if the defendant supported the former president of the labor union under investigation by the Supreme Prosecutors' Office, which is the place where the assembly of this case was prohibited.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence or misapprehension of legal principles as to Article 11 subparagraph 1 of the Assembly and Demonstration Act, as alleged in the

B. A prosecutor or a judicial police officer shall give a suspect an opportunity to defend himself/herself pursuant to Article 200-5, which shall apply mutatis mutandis pursuant to Article 213-2 of the Criminal Procedure Act, in cases where he/she arrests a flagrant offender or delivers a flagrant offender to the general public. Such notice shall be given prior to entering the exercise of the power for the arrest. However, such notice shall be given in principle before entering the exercise of the power. However, in cases where a person who drives a criminal suspect or who depies a criminal suspect against violence, she shall put him/her over or suppress him/her, or if it is not so, without delay after putting him/her down or suppressing (see, e.g., Supreme Court Decisions 9Do4341, Jul. 4, 200; 2008Do1226, Jun. 24, 2010).

According to the reasoning of the judgment below and the record, the police mobilized of 70 riot police officers at the time of the assembly of this case, and arrested nine persons as flagrant offenders to arrest the participants in the assembly. Among them, the Defendant was arrested by Nonindicted 1 of the riot police officers and became on board the escort bus immediately, and the Defendant was notified by Nonindicted 2 of the summary of the suspected crime, the reason for arresting the flagrant offender, and the opportunity to defend himself.

Examining the above situation of holding the assembly of this case, the process of arresting the defendant in the act of committing the crime, and the time when the defendant notified the defendant of the principle of Disturbance, etc. in light of the above legal principles, it is reasonable to deem that the notice under Article 200-5 of the Criminal Procedure Act was given

The judgment of the court below to the same purport is just, and there is no violation of law such as misunderstanding of legal principles or abuse of authority.

2. As to the Prosecutor’s Grounds of Appeal

Article 20 (1) of the Assembly and Demonstration Act provides that "the head of the competent police authority may demand voluntary dispersion within a considerable time with respect to an assembly or demonstration falling under any of the following subparagraphs, and if the demand for voluntary dispersion is not complied with, it shall be made." subparagraph 1 provides that "an assembly or demonstration violating the main sentence of Article 5 (1), Article 10, or Article 11" shall be construed as "an assembly or demonstration which is not reported pursuant to Article 6 (1) or prohibited pursuant to Article 8 or 12, or shall be construed as "an assembly or demonstration, the demand for voluntary dispersion or dispersion of which is made pursuant to Article 8 (3), the proviso to Article 10, or Article 12," and subparagraph 3 provides that "an assembly or demonstration, the demand for voluntary dispersion of which is made by the participants of the assembly or demonstration to the maximum extent possible after the dispersion order is made," and subparagraph 4 provides that "an assembly or demonstration, the demand for voluntary dispersion of which is clearly required by the organizer of the assembly or demonstration shall not be made pursuant to the above provisions of the order."

The summary of the facts charged of this case is as follows: "The chief of the police station guard division at the time of the assembly of this case requested voluntary dispersion on April 30, 2009 on the ground that the assembly was an outdoor assembly at the time of the assembly of this case at the time of the assembly of this case, and the participants including the defendant did not dissolve the above assembly without delay despite the first dispersion order at around 20:58, the second dispersion order at around 21:13, the second dispersion order at around 21:35, and the third dispersion order at around 21:35, since the participants did not comply with the demand for voluntary dispersion, the court below found the above facts charged as not guilty on the ground that there is no evidence to acknowledge that the chief of the guard division at the Seocho Police station at the time of the assembly of this case voluntarily requested dissolution and ordered dispersion on the ground that the assembly of this case was an outdoor assembly at the place prohibited from assembly of this case."

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to dispersion order under Article 20 of the Assembly and Demonstration Act as alleged in the ground of appeal

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)