Defendant 1 and six others

Defendants

Freeboard Kim

Attorney Choi Sung-ho

Seoul Central District Court Decision 2006Gohap731 Decided November 23, 2006

Seoul Central District Court Decision 2006No3597 Decided June 14, 2007

Supreme Court Decision 2007Do5205 Decided July 10, 2008

The judgment of the court below is reversed.

Defendants shall be punished by a fine of KRW 200,000.

In the event that the Defendants did not pay the above fines, the Defendants are confined in the Labor House for a period of 50,000 won converted into one day.

Two days of detention before the pronouncement of the judgment of the court below shall be included in the period of detention in the workhouse.

The provisional payment of the amount equivalent to each of the above fines shall be ordered.

Of the facts charged in the instant case, the Defendants are acquitted in violation of the Assembly and Demonstration Act.

1. Summary of grounds for appeal;

① The instant assembly in which the Defendants participated was duly reported to the Seoul Metropolitan Police Agency under the name of the Korea Construction Industry Association Dump (hereinafter “Dump”) affiliated with the Construction Industry Federation. However, it was merely an assembly organized and prepared by the members of the Ulsan Construction Industry Group under the Construction Industry Federation (hereinafter “Industrial Labor Group”) jointly with dump solidarity, and thus, it does not constitute an unreported assembly. Therefore, the instant dispersion order does not constitute an unlawful assembly, and thus, it does not constitute Article 18(2) of the former Assembly and Demonstration Act (amended by Act No. 7849 of Feb. 21, 2006). ② Even if the instant assembly was a non-reported assembly of plant labor union, the Defendants were aware that the Defendants participated in a dump assembly, but did not have been aware that the Defendants participated in an assembly of plant labor-management, and ③ the assembly of the instant assembly was a legitimate act that can be conducted under the social norms.

2. Determination

A. Ex officio determination (Defendant 2)

According to the reasoning for appeal by Defendant 2, prior to the judgment on the grounds for appeal, the above Defendant was sentenced on November 1, 2005 at the Suwon District Court, prior to the pronouncement of the judgment of the court below, for the crimes such as violation of the Punishment of Violences, etc. Act (at night and injury at night), etc., and on November 9, 2005, the above judgment became final and conclusive on November 9, 2005. The above crimes such as violation of the Punishment of Violences, etc. Act (at night and joint injury) and the violation of the Assembly and Demonstration Act, etc. of this case are concurrent crimes under the latter part of Article 37 of the Criminal Act, and the sentence is determined after examining whether to reduce or exempt the sentence in consideration of equity. In this regard, the part of the judgment of the court below as to the above Defendant cannot be maintained.

However, since the grounds of appeal by the above defendant, which contests the judgment of conviction against the whole facts charged against the above defendant, are still subject to the judgment of the court below, the remaining defendants are examined together with the grounds of appeal by the remaining defendants.

(b) basic facts;

According to the evidence duly admitted by the court below and the court below after remand, the following facts can be acknowledged.

(1) The National Construction Industry Trade Union Federation affiliated with the Democratic Labor Group (hereinafter referred to as the “Construction Industry Union”) is a trade union by company, region, and business type engaged in various construction fields, including a regional construction trade union (the primary organization of daily workers working at the construction site), a construction transport trade union (the primary organization of transportation workers transporting construction materials, such as ready-mixed, etc. at the construction site), an plant trade union (the primary organization of daily workers working at the construction site of structures, such as power plants, etc.).

(2) At the time of the instant case, the Defendants were executive officers or members of the Construction Industry Federation, the Gyeonggi-do Construction Industry Workers’ Union, the Korea Transportation Workers’ Union, the Korea Transport Workers’ Union, and the Korea Development Workers’ Union. At the time of the instant case, the Defendants were members of the plant trade union, and were not members of the plant trade union.

(3) On May 7, 2005, dump solidarity reported an outdoor assembly ( demonstration, demonstration, and demonstration) with the following contents (see, e.g., report on the status of self-information on May 7, 2005, and evidence No. 1 (certificate of receipt of report)).

1. Promoters: Democratic labor union construction and trade union dump solidarity (Defendant 7);

2. Date and time of holding: May 18 through May 31 (from sunrise to sunset);

3. Place of holding a demonstration (the course of the demonstration or demonstration): The park in the marina course of a university;

Had Jin: The place of assembly (two lanes in progress) ? Egropter (two lanes in reverse direction), ? Ro-ro 5 Ro-ro 3 km up to 2.5 km from Samsung Twit (two lanes in progress) ?

(* It does not report the three-dimensional method as the passage method of vehicular road)

4. Number of participants: 3,00 persons.

5. Name of assembly: A competition for resolution on the right to live in dump workers;

6. Assembly event competition: Unfair pulverization of over-the-counter workers, subsidization of oil expenses (payment of exempted oil), and dump workers' right to survive, such as realization of transportation expenses;

7. Preliminarys: 100 pl cards, 2,00 pl cards, 5,00 head belts, 5,000 ampers, 5,00 ampers and broadcasting vehicles;

8. Order keepers: 50 persons, including Nonindicted 1, etc.

(4) On January 1, 2004, the Ulsan Plant Construction demanded collective bargaining against the companies specialized in the Ulsan-si area to guarantee three labor rights and improve treatment, and it was rejected, and it continued an excessive assembly or demonstration, such as repeated occupation of roads at several places in the Ulsan mountain after the resolution of the general strike around March 2005, which interfere with traffic, including repeated occupation of roads at several places in the Ulsan mountain. On May 6, 2005 and around May 17, 2005, the Ulsan Plant Construction Group continued to engage in an excessive demonstration that is mobilized to speak and spathic disease.

(5) On May 22, 2005, the Ulsan Plant Labor Group planned an ordinary strike for 30 days and 4 days in Seoul, for the collective bargaining between Nonindicted Co. 2 and the government, which is the substantial party to the collective bargaining, and included a dump solidarity conference during that period, and 600 union members, who were contacted by the labor union enforcement department, provided the prepared materials, such as the dump cards, around 200.

(6) On May 23, 2005, the number of 600 members of the Ulsan Plant Steering Group 600 were transferred to the Marin Park at around 11:30 after the year of the press conference around the building at the headquarters of Nonindicted Co. 2 Co. 2, Ltd. to the Marin Park at the place of the instant assembly. Some of the Defendants were present at dump solidaritys and superior organizations, executives of the Democratic Labor Party, members of the Democratic Labor Party, students, and other social organizations.

(7) At the time of the instant assembly, most of the diskettess, flagpoles, and flag cards were prepared to the effect that the strike of the Ulsan plant labor union was legitimate, and the progress of the assembly was completed in order of opening declaration (the Secretary General of the Construction Industry Federation) 1 1 1 1 1 1 1 1 2 1 6 1 6 1 6 1 6 1 1 1 1 1 1 1 1 1 1 and 3 10 10 3 1,200 10 1,200 10 1,000 10 1,000 12 1 1,000 12 1,00 1

(8) At the time, the police officer instructed Defendant 3, etc. to conduct the instant assembly because it constitutes an unreported illegal assembly. However, Defendant 3, etc. was merely a part in the meeting reported by the Dump branch, a member of the Construction Industry Federation, and continued the instant assembly, not an unreported assembly, and continued the instant assembly. The police issued a dispersion order six times, but the participants of the assembly, including the Defendants, did not comply with the order.

(9) Examining the size, time, route, method, etc. of the above Tri-day calendar, 10 persons, including Defendant 7, in front of the broadcasting vehicle, and 10 persons, including Defendant 7, were in front of the enforcement department, and in fact 100 persons were in follow of the behind, and the rest was interrupted by the police during about 30 minutes in the walking method.

(c) Judgment on violation of the Act on Assembly and Demonstration: Whether it constitutes an unreported assembly

(1) Issues

Of the facts charged of this case, the violation of the Assembly and Demonstration Act is established on the premise that the assembly of this case is not held in the name of a lawful assembly or demonstration due to an excessive assembly or demonstration, unlike the contents of the report that the assembly of this case is held in order to hold a dump solidarity, and therefore, it constitutes a non-reported assembly of the Ulsan plant union. Therefore, the issue of this part is whether the assembly of this case was organized by the Ulsan plant union, unlike the contents of the report, and can be seen as an unreported assembly.

(2) Relevant statutes

Article 6 (1) of the former Assembly and Demonstration Act (amended by Act No. 7849 of Feb. 21, 2006) provides that "a person who intends to hold an outdoor assembly or demonstration shall submit to the chief of the competent police station a report stating the purpose, date and time (including the required hours), place, organizer (in the case of an organization, including its representative), contact manager, address, name, occupation, contact address of the order keeper, organization scheduled to participate and the number of participants scheduled participants and methods of demonstration (including route and route)," and Article 2 of the Enforcement Decree of the same Act provides that "The person who holds an outdoor assembly or demonstration without filing a report shall submit to the chief of the competent police station a report stating the purpose, date and time (including the required hours), contact officer, address, occupation, contact address, number of participants scheduled to participate, and method of demonstration (including route and route of demonstration, etc.), and the Enforcement Rule of the same Act provides that "the person who holds an outdoor assembly or demonstration without filing a fine not exceeding 20 years or less" (Article 18 (2).1).1).6).

Meanwhile, Article 14 (4) 3 of the former Assembly and Demonstration Act, which provides for the matters to be observed by the organizer of an assembly or demonstration, provides that "the organizer of an assembly or demonstration shall not commit any act significantly deviating from the scope of the reported purpose, date, time, place, method, etc., and shall not be punished by imprisonment for not more than one year or a fine not exceeding one million won (Article 19 (3))," and that "the organizer who violates this provision shall be punished by imprisonment for not more than one year or a fine not exceeding one million won" (Article 19 (3)), "the assembly or demonstration that is unable to maintain order due to the same act as above" may order dissolution after the prescribed procedure by the head of the competent police authority (Article 18 (1) 5). The participant who fails to leave without delay after being ordered to do so after being ordered to do so shall be punished by imprisonment for not more than six months or a fine not exceeding five hundred thousand won (Article 21 subparagraph 1 and Article 18 (2))."

(3) The legal principle on the criteria for distinguishing between the assembly of the scope of report and the unreported assembly

If the issue is whether an outdoor assembly or demonstration actually held after the report is still consistent with the reported outdoor assembly or demonstration or if it is deemed that such assembly or demonstration has not been reported beyond the limit of its identity, beyond the limit of its report, Article 21(2) of the Constitution provides that “No permission shall be granted for the assembly” shall be granted, and the nature and size of such assembly or demonstration shall be grasped in advance to protect legitimate outdoor assembly or demonstration, and the purport of the system for the prior report on the outdoor assembly or demonstration intended to take measures to maintain public safety and order, such as preventing any danger to the public safety and order thereby, Articles 3 and 4 of the former Assembly and Demonstration Act shall not interfere with or disturb the order of the organizer or organizer of the assembly or demonstration by means of violence, threat or otherwise, and shall not interfere with the activities of the organizer or organizer of the assembly or demonstration, and the head of the competent police agency shall not, without justifiable reasons, request the organizer or organizer of the assembly or demonstration to take measures to maintain the order and order of the specific person before the commencement of the assembly or demonstration or demonstration.”

However, according to the relevant provisions of the former Assembly and Demonstration Act, where an outdoor assembly or demonstration without reporting is deemed to be an act of holding an outdoor assembly or demonstration without reporting even if the report was made in advance, there may be cases where: (a) the outdoor assembly or demonstration is different from those reported from those reported from those reported from the beginning; or (b) the organizer was led by the organizer, but the outdoor assembly or demonstration was conducted at the first time; (c) the outdoor assembly or demonstration was conducted under the direction of the organizer, participating groups, etc., but the report on the outdoor assembly or demonstration was changed to those different from those reported under the direction of the organizer, participating groups, etc.; and (d) the case where the outdoor assembly or demonstration continues on the ground of its nominal title as the reported outdoor assembly or demonstration becomes inconsistent with the reported outdoor assembly or demonstration; and (e) the case where it may be deemed as an act of holding an outdoor assembly or demonstration without reporting the alteration or best activities after filing

(4) Determination

(A) In light of the above legal principles, the health team back to the instant case, and the factual basis as seen earlier, first of all, does not seem to exceed the scope of the date and place on which the instant assembly was reported.

(B) Furthermore, in light of its organizer, purpose, method of demonstration, etc., it is difficult to hold a legitimate assembly or demonstration in its name due to an excessive assembly or demonstration before the instant assembly, i.e., various circumstances revealed by the aforementioned facts, i., a situation where: (i) it was difficult to hold a lawful assembly or demonstration in its name; (ii) it was not included in the organization scheduled to participate at the time of the instant assembly; (iii) more than 60 persons among 70 persons who participated in the instant assembly were collectively present, and the rest of 100 persons who participated in the instant assembly or demonstration can be seen as completely different from the reported assembly or demonstration; and (iv) it is justifiable to view that the assembly or demonstration was provided in the name of the small number of persons who participated in the instant assembly or demonstration, and that most of the members, such as the members of the Ulsan plant transportation assistant, students, democratic employees, and other members, etc. were present at the time of the instant assembly or demonstration.

(C) However, there is no direct evidence to acknowledge that the Defendants, at the time of the assembly report of this case or at the time of the assembly of this case, they held the instant assembly and demonstration, but dump solidarity explicitly and implicitly conspired to use the title of the assembly report. Rather, it seems that the broadcast vehicles, micro-ampers, and simple stage facilities, etc. prepared for dump solidarity and construction association for the assembly of this case, were used only in front of the building at the headquarters of the non-indicted 2 corporation and the instant assembly, and that the number of persons participating in the assembly was more than 3,00,00 persons who were reported, and the two-lanes of the assembly and demonstration, which were planned to be carried out for the first time, cannot be seen as having been acknowledged as having been used for the assembly and demonstration of this case, in light of the fact that there is no evidence that there were no specific persons or organizations participating in the assembly and demonstration of this case, which are different from those argued in the assembly and demonstration of this case, and that some of the assembly and demonstration of this case cannot be seen to be seen as the participants of the assembly and demonstration of this case.

(D) Therefore, since this part of the facts charged constitutes a case where there is no proof of crime, it shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the judgment of the court below which differs from this conclusion has an error of law by misunderstanding facts, and the

D. Determination on the violation of the Road Traffic Act

(1) Of the facts charged in the instant case, the summary of the violation of the Road Traffic Act is that the Defendants interfere with traffic by driving along the Triday. As seen earlier, it cannot be readily concluded that the instant assembly was a non-reported assembly. As such, the issue in this part of the facts charged can be seen as a justifiable act that does not violate social rules in light of its purpose, means, etc., even if it was conducted within the scope of the reported contents, or it was deviates from the scope of the reported contents, or even if it was conducted within the scope of the reported contents, the issue in this part of the facts charged can be seen as a part of the assembly or demonstration

(2) As seen earlier, the instant assembly went beyond the scope of the instant assembly report in light of the specific developments, size, time, and impact caused by traffic flow, etc. of the 30 minutes prior to the moving of about 70 persons, and the assembly of this case deviates from the scope of the instant assembly report, and it does not constitute a justifiable act meeting the requirements of legitimacy, means and method of the motive or purpose, reasonableness of legal interests, balance of legal interests, urgency, supplement, etc.

(3) Therefore, we cannot accept the Defendants’ assertion on this part.

3. Conclusion

Therefore, among the judgment below, the defendants' appeal against the violation of the former Assembly and Demonstration Act is justified, and this part and the remaining part are concurrent crimes under the former part of Article 37 of the Criminal Act, and the punishment is determined at the same time. Therefore, the entire judgment of the court below is reversed and the judgment is

Defendant 1 is the chairman of the National Construction Industry Federation under the Democratic Labor Group, Defendant 5 is the member of the Gyeonggi Construction Industry Union, Defendant 2 is the vice-chairman of the national construction industry union, and Defendant 7 (Co-defendant 8 of the court of first instance) is a person who works as the chairman of the National Construction Industry Union on November 1, 2005 when the above judgment was finalized on November 9, 2005, Defendant 3 is the person who was sentenced to the suspension of the execution of six months. Defendant 4 is the secretary general of the National Construction Industry Association, Defendant 4 is the chairman of the National Transport Industry Union, Defendant 6 is the chairman of the National Transport Industry Union, Defendant 5 is the chairman of the National Transport Industry Union, and Defendant 7(Co-defendant 8 of the court of first instance) is the chairman of the National Transport Industry Union dump Dump.

Since June 2004, the construction plant trade union organized mainly for the services of the construction companies in the Ulsan-si area requested 58 local specialized construction companies from around 504 to refuse the negotiations on the grounds that it was not entitled to negotiate from the above companies, which decided to proceed to the commercial strike in order to induce the interest of the government and public opinion by leading the enforcement department of the trade union, in collusion with the higher organization executives and 600 union members, in order to attract the interest of the government and public opinion;

From May 23, 2005, from around 13:00 to about 13:00, he prepared two broadcasting vehicles, flagpoles, and printed articles in the Marin Park in Jongno-gu Seoul, Jongno-gu, Seoul, with the names of 600 Nowon-gu, and held a "Resolution for the Urgen Agreement for the Promotion of Voluntary Collaboration Round" with the names of 600 Nowon-gu, and occupied the two lanes in front of the neighboring international cooperation group, and used three parallels for about 30 minutes in front of the neighboring international cooperation group to interfere with the passage of the vehicle, thereby hindering the passage of the vehicle.

1. Defendants’ respective legal statements

1. The party trial statement after the remand of Nonindicted 6’s witness

1. Each police interrogation protocol against the Defendants

1. A copy of each police statement made against Nonindicted 7 and 8

1. A report on investigation (on the investigation report of evidence documentary evidence).

1. Report of each information situation;

1. Previous convictions in judgment: Residents' inquiry, failure to take measures, and reporting the results of confirmation;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 114 Subparag. 6 and Article 63(3)2 of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005), Article 30 of the Criminal Act (elective Selection)

1. Handling concurrent crimes;

Defendant 2: The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Calculation of days of detention;

Article 57 of the Criminal Code

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Of the facts charged in the instant case, the summary of the violation of the Assembly and Demonstration Act is as follows: “The Defendant: (a) asked 58 companies specialized in the region from June 2004 to June 14, 2004 to negotiate on a pregnant and group; and (b) refused such negotiations on the grounds that the said companies are not entitled to negotiate; (c) decided to initiate a commercial strike with the direction of the executive branch of the trade union to attract interest of the Government and public opinions; (d) conspired with 600 employees of the superior organization and union members; and (e) the Defendant conspired with 13:00 to 14:00 of May 23, 2005, to prepare for two vehicles, flagpoles, and printed items for demonstration; and (e) demanded 600 times or more to hold a new assembly and demonstration on the grounds that they were not entitled to negotiate from the above companies; and (e) the Defendant constitutes a three-lane of the first three-lane order of collective cooperation on the ground that it constitutes a three-lane order of collective bargaining.

Judges Cho Jong-sung (Presiding Judge)