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(영문) 대법원 2015.09.10 2013도5997
집회및시위에관한법률위반
Text

The appeal is dismissed.

Reasons

The grounds of appeal are examined.

1. In full view of the constitutional value and function of the freedom of assembly, the constitutional spirit, the purport of the Assembly and Demonstration Act that declared the prohibition of permission for assembly (hereinafter “Act”) under the Act on Assembly and Demonstration with respect to outdoor assembly and demonstration, etc., the report is significant in providing specific information about assembly to an administrative agency for cooperation in the maintenance of public order, and it shall not be changed into an application for permission for assembly. Thus, it cannot be readily concluded that the outdoor assembly or demonstration is not allowed to be held beyond the scope of protection 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 separately stipulate the requirements for dispersion as the object of an outdoor assembly or demonstration which is not reported, it may be ordered to dissolve pursuant to the above provision only when the outdoor assembly or demonstration clearly poses a direct risk to another person’s legal interests or public peace and order, and only when the outdoor assembly or demonstration satisfies such requirements, it may be punished pursuant to Article 24 subparag. 5 of the Assembly and Demonstration Act.

(See Supreme Court en banc Decision 2010Do6388 Decided April 19, 2012). The lower court affirmed the first instance judgment that acquitted the Defendant on the ground that: (a) acknowledged the circumstances as indicated in its reasoning; (b) committed the violation of the Act on Assembly and Demonstration on May 31, 201; (c) committed the violation of the Act on Assembly and Demonstration on June 2, 2011; and (d) committed the violation of the Act on Assembly and Demonstration on March 25, 2012 by each third assembly or demonstration at the time of the third dispersion order, it is difficult to view that there was no proof of a crime, on the grounds that it is obviously difficult to view that there was no proof of a crime.

The judgment below

Examining the reasoning in light of the aforementioned legal principles and records, the lower court’s aforementioned determination.

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