The meaning of “ Demonstration” under the Assembly and Demonstration Act, and the standard for determining whether a specific act committed by many people in a certain place constitutes a demonstration.

According to Article 2 Subparag. 2 of the Assembly and Demonstration Act, “ Demonstration” refers to an act of a group of people, with a common purpose, that affects, or imposes pressure on, the opinion of an unspecified number of people by leading to a place where many people can freely pass through, such as roads, squares, parks, etc., or by showing power or mechanism. Whether a specific act of gathering a certain place by many people constitutes a demonstration as part of a collective expression with a common purpose constitutes a group of intent. In addition, in full view of the objective aspects such as the attitude of the act, the number of participants, etc., as well as the subjective aspects such as the internal relationship between them, it shall be evaluated according to whether the act can be seen as an act of affecting, or under pressureing, the opinions of many unspecified persons.

Article 2 subparag. 1, 2, Article 10, and Article 23 of the Assembly and Demonstration Act

Supreme Court Decision 2009Do2821 Decided September 29, 201 (Gong2011Ha, 2274)

Defendant 1 and two others

Prosecutor

Law Firm citizen, Attorneys Kim Ba-soo et al.

Suwon District Court Decision 2010No5071 Decided February 8, 2011

The part concerning Defendant 1 and 2 among the judgment below is reversed, and that part of the case is remanded to the Suwon District Court Panel Division. The appeal against Defendant 3 is dismissed.

The grounds of appeal are examined.

1. Determination on the grounds of appeal against Defendant 1 and 2

A. Of the facts charged in the instant case, the summary of the violation of the Assembly and Demonstration Act is as follows: Defendant 1, the head of ○○○ and △△△ Branch, the head of the said branch, and Defendant 2, the head of the said branch, in collusion with Nonindicted 1, the head of the △△ Branch, the head of the said branch, and Defendant 2, the head of the said branch, who is the head of the △△△ Branch, to which the said branch belongs (hereinafter referred to as the “instant branch”). From August 7, 2007 to August 8, 2007; from August 23:00 to 04:00 on August 8, 2007; and from August 22:0 to 04:0 on August 9, 2007 to two times at night.

B. According to the reasoning of the judgment below, the court below maintained the judgment of acquittal in the first instance court on the ground that since the above Defendants were gathered at the “suwon center” of the non-party company located in Yong-si ( Address omitted) located in Young-gu (hereinafter “the Assembly and Demonstration Act”) with a certain purpose for industrial action against the non-indicted 2 corporation (hereinafter “non-indicted 2 corporation”), the part regarding “outside assembly” in Article 10 of the Assembly and Demonstration Act and the main sentence of Article 10 in Article 23 subparag. 1 of the Assembly and Demonstration Act (hereinafter “the Assembly”) are retroactively invalidated by the Constitutional Court’s ruling of inconsistency with the Constitution (the Constitutional Court en banc Decision 2008Hun-Ga25, Sept. 24, 2009).

C. However, we cannot accept the above determination by the court below for the following reasons.

(1) According to Article 2 Subparag. 2 of the Assembly and Demonstration Act, “ Demonstration” refers to an act of a group of people, with a common purpose, that affects, or imposes pressure on, the opinion of an unspecified number of people at a place where the general public can freely pass, such as roads, squares, parks, etc. A specific act of gathering at a certain place is conducted as a part of a collective expression with a common purpose. Whether such act constitutes a demonstration as an act of gathering at a certain place, which constitutes an objective aspect such as the pattern of the act, the number of participants, etc., as well as subjective aspects such as internal ties relationship among them, should be evaluated in accordance with whether such an act can be seen as an act of affecting, or under pressureing, the opinions of many unspecified persons (see Supreme Court Decision 2009Do2821, Sept. 29, 2011, etc.).

(2) Review of the evidence and records adopted by the first instance court maintained by the lower court reveals the following facts.

① The “report on outdoor assembly ( demonstration or demonstration”) submitted by Nonindicted Party 1 to the Chief of the Gangseo-gu Police Station” refers to “the method of demonstration” as “delivery - in front of the bus vehicle notice - handblor F/S cent - in front of the bus bus notice - India” - The document “the method of assembly or demonstration” attached to the said report refers to “the contents of the event” as “the contents of the event” as “the contents of the event” as “cloring, strike, relief proposal, reading out the written resolution, solidarity, jointly and severally, and the expression “the use of the facility” as “the use of the facility” refers to 10 cards or diskettes, 30 broadcasting cars, 2,00 printed materials, 10 vehicles for the event, 3 types of demonstration facilities.”

② The above Defendants, along with the 60 members belonging to the instant sub-committee, parked 53 freight vehicles at one lane from August 6, 2007 to August 9, 201:25, prior to the entrance of the said sub-committee, from August 6, 2007 to August 25, 2007.

③ Under the direction of the above Defendants, the members of the instant sub-chapter dump dump dump dump dump, etc. dumped in front of the said sub-committee, and dumped the freight vehicles entering the said sub-center, and recommended them to participate in the strike by distributing the printed materials prepared in advance to the said articles, and by threatening the non-compliance engineers, or by threatening them to put them into a dump, stone, etc.

(3) Examining the above facts in light of the legal principles as seen earlier, it is sufficient to view that the above acts of the Defendants and the members of the headquarters of the instant case constitute a demonstration, which is an act affecting their opinions by presenting their respective opinions through the exercise of power or influence upon the sharing of roles planned by many people with a common purpose, and by delivering their arguments to many unspecified persons, including the officers and employees of the non-party company.

Nevertheless, the lower court, solely on the grounds stated in its reasoning, determined that the above Defendants constituted an assembly rather than a demonstration, exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or exceeding the bounds of the principle of free evaluation of evidence, thereby misunderstanding the legal doctrine

However, the Constitutional Court rendered a decision that "a demonstration" in the main sentence of Article 10 of the Assembly and Demonstration Act and the main sentence of Article 23 subparagraph 3 of the same Article shall be in violation of the Constitution that applies to " demonstration from sunset to twenty-four days" [the Constitutional Court en banc Decision 2010Hun-Ga2, 2012Hun-Ga13 (Consolidation) Decided March 27, 2014]. This shall be deemed to be a unconstitutional intent of the part concerning " demonstration" in the main sentence of Article 10 of the Assembly and Demonstration Act, despite the form of expression in the text thereof, which is part of the unconstitutionality that "from sunset to twenty-four days after sunset," and the above decision of the Constitutional Court is effective as a unconstitutional decision under Article 47 subparagraph 3 of the Constitutional Court Act, although it is against the participants under Article 23 subparagraph 3 of the Assembly and Demonstration Act, it also becomes effective as a unconstitutional decision of unconstitutionality as to the part concerning a demonstration during the night period of 1010 years.

Therefore, the part concerning the " Demonstration" under the Article 47 (2) of the Assembly and Demonstration Act, "from the truth-finding to the 24th day of the same day" is retroactively invalidated pursuant to the proviso of Article 47 (2) of the Constitutional Court Act. Thus, the facts charged charged by applying the above part of the charges constitute a case where the crime charged is not committed as a crime. Therefore, the court below found the defendant not guilty of the part that held the demonstration from August 7, 2007 to 24:00 of the same day, and from August 8, 2008 to 24:00 of the same day, from August 22, 2008 to 24:00 of the same day. However, this part is also reversed as long as the part concerning the demonstration held during the remaining hours in relation to the crime of this day is reversed.

2. Determination on Defendant 3’s grounds of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, it is justifiable for the lower court to maintain the first instance judgment that acquitted Defendant 3 of all of the facts charged in the instant case, on the grounds indicated in its reasoning, of violation of the Punishment of Violences, etc. Act (i.e., damage to joint property) except the victim Nonindicted 3, obstruction of business prior to August 9, 2007, and obstruction of general traffic. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on joint principal offense.

3. Scope of reversal

A prosecutor submitted a written appeal to the effect that he/she is dissatisfied with the whole judgment of the court below, but failed to submit the grounds for appeal concerning the guilty

However, in a case where part of the judgment of the court below that found the defendant guilty and part of the facts charged with concurrent crimes under the former part of Article 37 of the Criminal Act did not appeal against the judgment of the court below that found the defendant not guilty, but appealed to the whole part of the judgment of the court below without limit to the part not guilty, and where only the prosecutor's appeal against the part not guilty is justified (see Supreme Court Decision 2005Do40, Sept. 15, 2005, etc.), the appellate court should reverse the whole judgment of the court below as an appeal (see Supreme Court Decision 2005Do40, Sept. 15, 2005). The part of the judgment of the court below which found the defendant 1 and 2 guilty and the part of the judgment of the court below which found

4. Conclusion

Therefore, the part concerning Defendant 1 and 2 among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor's appeal against Defendant 3 is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)