[1] Meaning of “Assembly” subject to guarantee and regulation under the Assembly and Demonstration Act

[2] Protection and protection of the law of the obstruction of general traffic, acts subject to punishment / Whether the obstruction of general traffic is an abstract dangerous crime (affirmative), and the time when the obstruction is taken

[3] In a case where it is recognized that the maintenance line under the Act on Assembly and Demonstration is necessary for the protection of assembly and demonstration and for the maintenance of public order, and where it falls under the grounds stipulated in Article 13(1) of the Enforcement Decree of the same Act, whether it may be established in the place of assembly and demonstration (affirmative), and whether the maintenance line should be set up at the minimum scope deemed necessary for the protection of assembly and demonstration and for the maintenance of public order (affirmative)

[4] The scope of allowing police officers to enter the place of an outdoor assembly or demonstration for maintaining public order (=the minimum scope recognized as necessary to protect an assembly or demonstration and maintain public order)

[5] Whether the crime of obstruction of performance of official duties constitutes a crime of obstruction of performance of official duties where an assault is committed against a public official who commits an unlawful act (negative)

[6] Whether a line of order keeping established by the method of posting police officers constitutes a line of order keeping under the Act on Assembly and Demonstration (negative) / Whether a crime of violation of Article 24 subparagraph 3 of the Act on Assembly and Demonstration due to a violation of the utility of a line of order keeping operations is established only when a line of order keeping operations falling under Article 2 subparagraph 5 of the Act is legally established pursuant to Article 13 of the same Act (affirmative)

[1] Article 2 subparag. 1, Article 6(1), Article 20(1)2, Article 20(2), and Article 24 subparag. 5 of the Assembly and Demonstration Act / [2] Article 185 of the Criminal Act / [3] Article 2 subparag. 5, Article 13(1), and Article 24 subparag. 3 of the Assembly and Demonstration Act; Article 13(1) of the Enforcement Decree of the Assembly and Demonstration Act / [4] Article 2 subparag. 5, Article 13(1), and Article 19 of the Assembly and Demonstration Act / [5] Article 136(1) of the Criminal Act / [6] Article 2 subparag. 5, Article 13, and Article 24 subparag. 3 of the Assembly and Demonstration Act

[1] Supreme Court en banc Decision 2010Do6388 Decided April 19, 2012 (Gong2012Sang, 912), Supreme Court Decision 2010Do11381 Decided May 24, 2012 (Gong2012Ha, 1169), Supreme Court Decision 2012Do1518 Decided October 24, 2013 (Gong2013Ha, 2171), Supreme Court Decision 2015Do4273 Decided June 11, 2015 / [2] Supreme Court Decision 95Do1475 Decided September 15, 195 (Gong195Ha, 3483), Supreme Court Decision 2019Do7419 Decided October 28, 2015 (Gong201984 decided Oct. 28, 2014)

Defendant

Defendant and Prosecutor

Attorneys Lee Jae-ho et al.

Seoul High Court Decision 2015No2496 decided November 8, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. Violation of the Assembly and Demonstration Act due to the failure to comply with the dispersion order on May 10, 2012 (hereinafter “Act”)

An assembly subject to guarantee and regulation under the Assembly and Demonstration Act refers to “temporary gathering of a specific or unspecified number of people at a certain place for the purpose of externally expressing their opinions by forming a common opinion” (see, e.g., Supreme Court Decision 2010Do11381, May 24, 2012). In full view of the constitutional value and function of freedom of assembly, constitutional spirit that declared prohibition against permission for assembly, and purport of the prior report system regarding outdoor assembly and demonstration, etc., even if Article 20(1)2 of the Assembly and Demonstration Act is subject to an order of dispersion and does not provide for separate dispersion requirements, the assembly may be punished pursuant to Article 24 subparag. 5 of the Assembly and Demonstration Act only in cases where such outdoor assembly or demonstration poses a direct danger to other persons’ legal interest or public safety and order, and the order of dispersion that satisfies such requirements is not complied with (see, e.g., Supreme Court en banc Decision 2010Do3868, Apr. 19, 2012).

In full view of the circumstances indicated in its holding, the lower court convicted the Defendant of the violation of the Act due to the failure to comply with the dispersion order on May 10, 2012 among the facts charged in the instant case, on the ground that the outdoor assembly held without reporting under the Act obviously poses a direct risk to the legal interests relating to others’ use of roads or public peace and order, even though it was conducted in the form of a press conference, and thus, constitutes an outdoor assembly under the Act.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on freedom of assembly, the concept of assembly under the Act,

(b) The point of interference with general traffic on May 10, 2012;

The purpose of general traffic obstruction is to punish any act that causes damage to or causes damage to land, road, etc. or obstructs traffic by other means, thereby making it impossible or remarkably difficult (see, e.g., Supreme Court Decision 95Do1475, Sept. 15, 1995). In addition, general traffic obstruction is an abstract dangerous crime, so it is impossible or considerably difficult to traffic, and the result of traffic obstruction is not a practical occurrence (see, e.g., Supreme Court Decision 2004Do7545, Oct. 28, 2005).

On May 10, 2012, the lower court found the Defendant guilty of general traffic obstruction on May 10, 2012 among the facts charged in the instant case on the grounds of its stated reasoning, such as the details and process of the assembly, the mode and degree of traffic obstruction, the time when the Defendant participated, and spatial scope.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the protected legal interest of the general traffic obstruction, the mode of conduct, intent

(c) The point of interference with general traffic on June 16, 2012;

The court below found the defendant guilty on the ground that since it seems that the defendant completed an assembly with 1,200 participants in the assembly and occupied the crosswalks as a side-side subsidiary road after opening the assembly and driving ahead of the LG commission building near the south of the Manbridge, the auxiliary road is divided into the part of the 10-lanes and the bus is a road used by the bus stop installed on the side-way road to make a right-way and the bus stop that is installed on the side-way road to make a right-hand route to a right-hand route and the auxiliary road, the traffic of the auxiliary road became impossible due to the fact that the defendant et al. occupies the auxiliary road as a subsidiary road, and it seems that it was inevitable to make a right-hand route to a right-hand route and the adjacent bus that he would have been unable to enter as a bus stop, etc., even if it was possible to make a right-hand route through the surrounding area, it is considerably difficult for the defendant to use the ordinary road as above.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence

D. Defluence on July 20, 2014

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court was justifiable to have convicted of insult on July 20, 2014 among the facts charged in the instant case on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine

2. As to the Prosecutor’s Grounds of Appeal

(a) Points of interference with general traffic on May 19, 2012 and February 23, 2013;

As long as the recognition of facts and the selection and evaluation of evidence conducted on such premise do not exceed the bounds of the principle of free evaluation of evidence, it belongs to the exclusive jurisdiction of the fact-finding court and the final appeal is bound by the court of final appeal. In addition, the recognition of criminal facts in a criminal trial ought to be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. In a case where the prosecutor’s proof does not reach the degree to have such conviction, even if there is a room for suspecting the Defendant, the

For the reasons indicated in its reasoning, the lower court upheld the first instance judgment that acquitted all of the charges of general traffic obstruction on May 19, 2012 and February 23, 2013 among the charges in the instant case, on the ground that there was no proof of a crime.

Examining the reasoning of the lower judgment in light of the record, all of the aforementioned determination by the lower court is just and acceptable. Contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

B. On July 24, 2013, the violation of the Act due to a special obstruction of performance of official duties, violation of the Act due to the organizer’s violation of the Act, violation of the utility of the order keeping line, and the violation of the Act due to each special obstruction of performance of duties, violation of the Act due to the organizer’s violation of the Act, and violation of the utility of the order keeping line on August 21, 2013.

1) The allegation on the legality of setting up a line for maintenance of order and posting of police officers

A) We examine the legitimacy of the Assembly and Demonstration Act.

(1) Article 2 Subparag. 5 of the Assembly and Demonstration Act provides that “The chief of a police station or the commissioner of a district police agency having jurisdiction over a line of assembly and demonstration refers to a boundary mark, such as a belt, room, line, etc. set up by dividing the place of assembly and demonstration or the section of a parallel at a certain time in order to protect lawful assembly and demonstration and to maintain order or ensure smooth traffic flow.” In addition, Article 13(1) of the Assembly and Demonstration Act provides that “the head of the competent police agency may set up a line of order within the minimum scope, if deemed necessary for the protection of assembly and demonstration and for the maintenance of public order.” Article 13(1) of the Enforcement Decree of the Assembly and Demonstration Act delegated by the above provision lists cases where a line of order maintenance can be set up under each subparagraph. Meanwhile, Article 24 Subparag. 3 of the Assembly and Demonstration Act provides that a line of order maintenance set under Article 13 of the Assembly and Demonstration Act shall be punished for a considerable time without justifiable cause, or damage, concealment, movement,

In light of the relevant provisions of the Assembly and Demonstration Act and the Enforcement Decree of the Assembly and Demonstration Act, if it is deemed necessary for the protection of assembly and demonstration and for the maintenance of public order, and if it falls under the grounds provided by Article 13(1) of the Enforcement Decree of the Assembly and Demonstration Act, it is reasonable to view that a line for maintenance of order under the Assembly and Demonstration Act may be established not only in the outer boundary area of the place where the assembly or demonstration is held, but also in the place of assembly or demonstration. However, even in such a case, the line for maintenance of order shall be set at the minimum scope deemed necessary for the protection of assembly and demonstration and for the maintenance of public order, and if the line for maintenance of order was set out beyond the above scope, it is not legitimate as it

In addition, in light of the language and purport of the penal provision regarding the act of the order keeping line and the invasion of the order keeping line under the Assembly and Demonstration Act, it is reasonable to view the order keeping line as an object that can function as a boundary mark, such as belt, fence, line, etc., or a safety mark under the Road Traffic Act. Thus, even if police officers play an actual role in the order keeping line by means of the external range of the place where the assembly or demonstration takes place, or by such means as the reduction inside the place, it cannot be said that it is a order keeping line under the Assembly and Demonstration

Meanwhile, Article 19(1) of the Assembly and Demonstration Act provides that “a police officer may enter the place of an assembly or demonstration after informing the organizer of the assembly or demonstration thereof and have access to the place of the assembly or demonstration: Provided, That access to the place of the assembly or demonstration may be permitted only in cases of an emergency to perform his/her duties.” Article 19(2) provides that “the organizer of the assembly or demonstration, moderators, or the manager of the place shall cooperate with the police officer in the performance of his/her duties to maintain order,” thereby allowing a police officer’s access to the place of the assembly or demonstration to maintain order. Article 19 of the Assembly and Demonstration Act provides only notification to the organizer, uniform wearing, as the requirement for police officer’s access to maintain order at the place of the assembly or demonstration. However, in light of the constitutional value and function of the freedom of assembly and demonstration, the guarantee of the right to assembly and demonstration, and the legislative purpose of the Assembly and Demonstration Act that harmony the public safety and order, a police officer’s access to the place of an outdoor assembly or demonstration shall be made to the minimum extent necessary.

(2) In full view of the circumstances as indicated in its reasoning, the lower court determined that the establishment of each line for maintenance of order (referring to a line for maintenance of order through the placement of goods, such as plastic structures; hereinafter the same shall apply) in front of the cremation in each of the instant assemblies held on July 24, 2013 and July 25, 2013 and August 21, 2013 was unlawful under the Act.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the conclusion that although some of the judgment of the court below is not appropriate, it is acceptable to conclude that the order keeping line prior to each assembly place of this case set the minimum scope necessary for protecting assemblies and maintaining public order.

(3) Next, the lower court, based on its stated reasoning, determined that the posting of the front police officer at each assembly site of this case was illegal under the Act, by taking into account the following circumstances: (a) it is difficult to view that the line set up through the posting of police officers constitutes a line for the maintenance of order under the Act; and (b) it appears that even without posting police officers within the assembly site, it could have protected the group of this case or cultural

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, it cannot be deemed that the establishment of a line for maintenance of public order under the Act, such as the judgment of the court below, where police officers entered the front of the instant brigade, which is the place of assembly, and possession of part of the same remains, cannot be deemed as the establishment of a line for maintenance of public order under the Act.

B) We examine whether a police officer’s performance of duties is lawful under the Act.

The lower court determined that, in full view of the circumstances as indicated in its reasoning, the establishment of a line for maintenance of order and the placement of police officers in front of the unification at each assembly site of this case was unlawful under the Act on the Performance of Duties by Police Officers, based on the following circumstances: (a) there was no attempt to enter the chemical of this case or damage the chemical of this case or damage the chemical of this case; and (b) there was no evidence to recognize that each participant of the assembly of this case committed such an attempt.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, it is difficult to view that the establishment of a line to maintain order before the unification of each assembly of this case and the placement of police officers meet the requirements for performing duties to prevent and control crimes under the Act on the Performance of Duties by Police Officers.

C) Therefore, the lower court’s determination based on the foregoing determination is justifiable to have determined that the establishment of a line to maintain order and the placement of police officers in front of the unification at each assembly site of this case was unlawful. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

2) Opinion on the establishment of the crime of causing bodily injury to special obstruction of performance of official duties

Since the crime of obstruction of performance of official duties is established only where the performance of official duties is legitimate, it does not constitute the crime of obstruction of performance of official duties even if an assault was committed against a public official who performs an illegal act (see Supreme Court Decision 91Do2797 delivered on February 11, 192, etc.).

For the reasons indicated in its reasoning, the lower court upheld the first instance judgment that acquitted all of the charges of obstructing the performance of special official duties on July 24, 2013, and of obstructing the performance of official duties on July 25, 2013, and August 21, 2013.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

3) Claim on the establishment of a crime of violation of the Assembly and Demonstration Act due to a violation of each organizer's duty to observe

Based on the circumstances indicated in its reasoning, the lower court upheld the first instance judgment that acquitted the Defendant of the violation of the Act on Assembly and Demonstration on July 24, 2013 and July 25, 2013 among the facts charged in the instant case, on the grounds that each of the following acts committed by the Defendant against unjust infringement of the freedom of assembly, and upheld the first instance judgment that acquitted him of the violation of the Act on Assembly and Demonstration on August 21, 2013.

Examining the reasoning of the lower judgment in light of the record, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

4) As to the establishment of a crime of violation of the Assembly and Demonstration Act due to infringement of the utility of each line of order keeping.

Article 2 subparag. 5 of the Assembly and Demonstration Act provides that the line of order defined by Article 2 subparag. 5 refers to belts, fences, lanes, etc., or safety signs established under the Road Traffic Act. Thus, the line of order established by posting police officers does not constitute a line of order under the Assembly and Demonstration Act. Article 13(1) of the same Act provides, “The head of the competent police authority may set a line of order within the minimum scope as deemed necessary for the protection of assembly and demonstration and for the maintenance of public order.” Article 24 subparag. 3 of the same Act provides, “When the head of the competent police authority establishes a line of order in accordance with paragraph (1), he/she shall notify the organizer or person in charge of liaison thereof when he/she sets up the line of order.” Article 24 subparag. 3 of the same Act provides, “A person who, without good cause, intrudes a line of order established under Article 13, or damages, conceals, moves, or removes the utility of the line of order under the Assembly and Demonstration Act.” Therefore, even if the crime of violation of order under Article 24 subparag. 3 of the Assembly and Demonstration Act is duly established.

Examining the aforementioned legal principles and records in light of the aforementioned legal principles, the line set up by the Defendant at the assembly on July 25, 2013 and August 21, 2013, among those which harm the utility as stated in this part of the facts charged, cannot be deemed as a line for the maintenance of order under the Act, and each line for the maintenance of order in front of the unification set up at each assembly of this case constitutes a line for the maintenance of order under the Act, but it cannot be deemed that the line for the maintenance of order set up at each assembly of this case constituted a line for the maintenance of order under the Act, as seen earlier, lawful establishment under Article 13 of the Act. Thus, each act of the Defendant

In the same purport, it is justifiable for the lower court to have upheld the first instance judgment that acquitted the Defendant on the violation of the Act due to the violation of the use of the Act, which was established on July 25, 2013 and August 21, 2013 through the placement of police officers, among the facts charged in the instant case.

Meanwhile, among the facts charged in the instant case, regarding the violation of the Act due to the infringement of the utility of each of the order keeping lines prior to the extinguishment of this case on July 24, 2013 and July 25, 2013, and August 21, 2013, the lower court’s explanation to the effect that even though the elements constituting the elements of the crime are recognized, it is inappropriate to view that the illegality should be avoided due to satisfying the requirements of self-defense, but the conclusion of the first instance judgment that acquitted the Defendant is justifiable.

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 relevant legal doctrine.

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 Noh Jeong-hee (Presiding Justice)