2011Do4460 Violation of the Assembly and Demonstration Act

1. A;

2. B

3. C

4. D.

Defendants

E Law Firm

Attorney F, G, H, I, J.;

K, L (for Defendants)

Seoul Central District Court Decision 2010No5054 Decided April 7, 2011

January 24, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. The freedom of assembly and demonstration has an essential function for the realization of democracy, but it is likely to cause public safety and order or legal peace and conflict because it is a freedom to express opinions in a collective form. Thus, the Assembly and Demonstration Act (hereinafter “Act”) provides that a person intending to hold an outdoor assembly or demonstration shall report a certain matter in advance to the chief of the competent police station (Article 6(1)), and the chief of the competent police station, upon receipt of the report, shall identify the nature and size of the outdoor assembly or demonstration in advance and protect the legitimate outdoor assembly or demonstration in advance, and also prepare a prior measure to maintain public safety and order by preventing infringement of the interests of others or communities through an outdoor assembly or demonstration. This is a minimum measure to harmonize the freedom of assembly and demonstration and public peace and order. Thus, the act of holding an outdoor assembly without such report shall not be punished, and thereby, it does not infringe on fundamental rights under the Constitution (Article 6(1) of the Act).

27. See, e.g., Supreme Court Decision 2002Do315 Decided 27.

In the same purport, the court below is just to apply the Act to the defendants' acts, and there is no error of law by misunderstanding legal principles as to the unconstitutionality of the Act, as alleged in the grounds of appeal

2. Unlike the definition of the concept of an outdoor assembly under Article 2 subparag. 2 of the Assembly and Demonstration Act, it does not have any definition as to the concept of an assembly. However, the assembly subject to security and regulation under the Assembly and Demonstration Act refers to a case where a specific or many unspecified persons form a common opinion and gather temporarily at a certain place for the purpose of externally expressing it (see, e.g., Supreme Court Decision 2007Do1649, Jul. 9, 2009). The purport of the Assembly and Demonstration Act stipulating that a person intending to hold an outdoor assembly or demonstration should report a certain matter in advance to the chief of the competent police station, as seen earlier, to protect a legitimate outdoor assembly or demonstration and to prepare a prior measure to maintain public safety and order, the above obligation to report is not exempted on the ground that the outdoor assembly or demonstration is peaceful or that there is a legitimate opinion to present it through this (see, e.g., Supreme Court Decision 2007Do16498, Jul. 9, 2009).

The court below held, based on the facts stated in its reasoning, that the assembly of this case held by the defendants was held in the form of an outdoor assembly held by the defendants, but it was temporarily gathered in a certain place under the purpose of externally expressing the government's attitude while defending the opinions of the removal residents surrounding the removal of mountain, and thus constitutes an outdoor assembly to be reported in advance under Article 6 (1) of the Assembly and Demonstration Act. In light of the above legal principles and records, the defendants did not report in advance, and found that they violated the Assembly and Demonstration Act by hosting the above outdoor assembly, the court below was just in finding the defendants guilty of holding the outdoor assembly held in the facts charged of this case, and there was no error of law by misunderstanding the legal principles as to the concept of assembly or legitimate act, as alleged in the grounds of appeal.

3. In full view of the constitutional value and function of the freedom of assembly, the constitutional spirit that declared the prohibition of permission for assembly, the purport of the prior report system on outdoor assembly and demonstration, etc., the report is intended to provide specific information on assembly to an administrative agency for cooperation in maintaining public order. Thus, it cannot be readily concluded that an outdoor assembly or demonstration is not allowed to be held beyond the protection scope of the Constitution solely on the ground that the report was not filed. Therefore, even if Article 20(1)2 of the Assembly and Demonstration Act does not stipulate any separate dissolution requirement when the outdoor assembly or demonstration is subject to an order for dispersion and does not clearly pose a direct risk to others’ legal interest or public safety and order, it shall be deemed that the said outdoor assembly or demonstration may be subject to dissolution order pursuant to Article 24 subparag. 5 of the Assembly and Demonstration Act only if it refuses to comply with the dispersion order (see Supreme Court en banc Decision 2010Do6388, Apr. 19, 2012).

Nevertheless, the court below did not examine and decide on whether the assembly of this case directly poses a direct danger to the legal interests of others or public peace and order, and on the premise that the assembly may order dissolution on the ground that it was an outdoor assembly that the assembly was not reported and thus, readily concluded that the Defendants’ act of failing to comply with the order constitutes a violation of dispersion order under the Assembly and Demonstration Act. Thus, the court below erred in the misapprehension of legal principles as to the refusal of dispersion order under the Assembly and Demonstration Act, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

4. Therefore, the part concerning the violation of the Act due to the failure to comply with the dispersion order among the judgment below shall be reversed. Since this part of the judgment below is deemed to have a relation between the violation of the Act due to the holding of each reported outdoor assembly and each substantive concurrent crime, the court below's judgment is reversed in its entirety, and the case shall be remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok

Justices Min Il-young

Justices Park Young-young

Jeju High Court Decision 201Na1548