[1] Whether there is a benefit in action to seek revocation of a notice of prohibition of assembly or demonstration in a case where the scheduled date of the first scheduled assembly or demonstration has elapsed during the duration of the administrative litigation seeking revocation of the notice of prohibition of assembly or demonstration (affirmative)

[2] In a case where an organization consisting of shopping district lessees submitted an outdoor assembly report, but the chief of the competent police station notified the prohibition of assembly under Article 8(2) of the Assembly and Demonstration Act on the grounds that the prior assembly, time, and place prior to the filing by the chief of the competent police station conflict with each other, the case holding that the above disposition is unlawful on the ground that the report of assembly conflicts with the prior assembly, or that the above assembly interfere with the prior assembly

[1] Article 9(3) of the Assembly and Demonstration Act provides that "if the notification of prohibition is judged to be illegal or unreasonable or if it becomes null and void, the opponent may hold an assembly or demonstration by reporting it to the chief of the competent police station 24 hours before the assembly or demonstration with the date and time set newly and by the notification of prohibition, etc. If the notification of prohibition becomes null and void, the opponent of the assembly or demonstration may hold an assembly or demonstration at the time set in an administrative litigation, even if the first scheduled date of the assembly or demonstration has expired during the duration of the administrative litigation seeking the revocation of the notification of prohibition, even if the first scheduled date of the assembly or demonstration has been determined to win in the administrative litigation, the organizer of the assembly or demonstration can hold an assembly or demonstration at the time set

[2] In a case where an organization consisting of shopping district lessees submitted an outdoor assembly report, but the chief of the competent police station notified the prohibition of assembly on the later report received under Article 8(2) of the Assembly and Demonstration Act on the grounds that the prior assembly, time, and place overlaps with those reported earlier and interfered with each other, the case holding that the above disposition is unlawful on the ground that, in light of the following: (a) the purpose of the second assembly and the contents and size of the first assembly are not likely to conflict; and (b) there is no possibility that two assemblies may conflict; and (c) even if there is no possibility to conflict completely; and (d) the means to prevent peace assembly by mobilization of police power permitted by the relevant statutes, such as the Assembly and Demonstration Act, in order to ensure the maximum freedom of assembly and demonstration guaranteed by the Constitution; and (b) immediately refusing the assembly report after receipt of the report constitutes the restriction of citizens’ fundamental rights without reasonable grounds, and there is no evidence to acknowledge otherwise that the prior assembly conflicts with, or interfered with, the above prior assembly.

[1] Article 12 of the Administrative Litigation Act, Article 9 (3) of the Assembly and Demonstration Act / [2] Article 12 of the Administrative Litigation Act, Article 8 (2) of the Assembly and Demonstration Act

Press Lessee Federation (Law Firm, Attorneys Kim Sang-soo et al., Counsel for the plaintiff-appellant)

The Chief of Seoul Guard Station

ridge Seafarers (Law Firm LLC, Attorneys Jeong Jin-soo et al., Counsel for the defendant-appellant)

November 8, 2011

1. On October 7, 2011, the Defendant’s disposition of notification not to hold an outdoor assembly against the Plaintiff is revoked.

2. Of the costs of lawsuit, the part resulting from the Defendant’s participation is assessed against the Defendant’s Intervenor, and the remainder is assessed against the Defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On October 7, 2011, the Plaintiff, an organization of which 6, Jung-gu, Jung-gu, Seoul, consisting of tenants of 17-2 (hereinafter “instant commercial building”), filed an outdoor assembly report with the Defendant by setting the name of “261 lessee’s lease deposit (125 billion won)” as “from October 20, 201 to November 6, 201,” the date and time of the assembly as “from October 20, 201 to November 6, 201, 09:0 to 10:00,000, 4, Dong-dong, 105 crew entrance (105, 300, 105, 105, 300, 300, 200,” and each reported person as “30,” respectively (hereinafter “instant assembly report”).

B. On the same day, the Defendant notified the Plaintiff of the prohibition of assembly (hereinafter “instant disposition”) of the Plaintiff’s report on the instant assembly received later pursuant to Article 8(2) of the Assembly and Demonstration Act on the ground that “the assembly, time, and place reported at king is recognized to be in concurrence with each other,” and on the same day, “the assembly, time, and place reported at king is recognized to be interfered with each other.”

[Reasons for Recognition] Unsatisfy, each entry in Gap evidence 1 to 4 (including virtual number), and the purport of the whole pleadings

2. Judgment on the main defense of the Defendant joining the Defendant

A. The Intervenor joining the Defendant (hereinafter “ Intervenor”) asserts that there was no benefit to seek the revocation of the instant disposition, since the date and time when the scheduled assembly was held (from October 20, 201 to November 6, 201) under the instant assembly report was already passed.

B. On the other hand, Article 9(3) of the Assembly and Demonstration Act provides that "if the notification of prohibition is judged to be illegal or unreasonable or if it becomes null and void, the person who filed an objection may hold an assembly or demonstration by setting a new date and time and reporting it to the chief of the competent police station 24 hours before the assembly or demonstration may hold the assembly or demonstration." Thus, even if the administrative litigation seeking the revocation of the notification of prohibition continues, even if the scheduled date of the first scheduled assembly or demonstration has expired during the duration of the administrative litigation, the organizer of the assembly or demonstration may hold an assembly or demonstration at the time when the winning becomes final and conclusive in the administrative litigation, and therefore, the benefit of lawsuit by the organizer who filed an objection or administrative litigation is still recognized. Therefore, the above main defense of the Defendant’s objection to the prohibition is without merit.

3. Whether the disposition is lawful;

A. The plaintiff's assertion

In light of the fact that the preceding assembly of this case has not been held once, that the purpose of holding both assemblies is not conflicting with each other, that the assembly space is sufficient to accommodate the reported number of persons, and that there are 30 order keepers with 10% of the reported number of persons, and that it is sufficient to prevent conflict between the participants in both assemblies, etc., it cannot be deemed that even if the preceding assembly of this case and the preceding assembly of this case are held at the same time and at the same place, it cannot be deemed as being hindered to the extent that its purpose cannot be achieved. Accordingly, the disposition of this case on a different premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Facts of recognition

(1) On September 20, 201, September 201, 201, prior to the Plaintiff’s report on the assembly of this case, the Geum River Association consisting of the students from the Buddhist University (hereinafter “Yeo River Association”) among the believers affiliated with the Intervenor reported the following outdoor assembly (a series of reports on the assembly of this case, which overlap with the report on the assembly of this case, to the Defendant (hereinafter “the report on the assembly of this case”).

The name of ○○○ Assembly located within the main sentence: The purpose of holding the general assembly of the ridge seafarer’s ridge association: From October 20, 201 to October 20, 201; the place of holding from 00:01 to 23:5 ridges in Gangnam-gu, Gangnam-gu 4, and 105 ridges in India (ridge crew-Gu tunnels-Gu - Simbridge building-Gu - Simbridges-Gu 1163-5 ridges), the organizer and the manager of the ridge seafarer’s ridge’s ridge’s ridge meeting: from October 20, 201 to October 20, 201; and the place of holding from 0: 30 ridges in the Hanjin-gu, Seoul Special Metropolitan City, to 105 ridges in the front of the ridge seafarer’s ridge, and the 30 ridges in the front of the ridge.

(2) From Sept. 21, 201 to Oct. 7, 2011, the Flusium repeatedly accepted a report on the assembly to hold an assembly with the same contents as the preceding paragraph to the Defendant during a period of 720 hours from Sept. 21, 2011 to Oct. 7, 201. As a result, from Oct. 21, 2011 to Nov. 6, 2011, the Flusium received a report on the assembly with the same contents as the preceding paragraph from Oct. 21, 201, which overlaps with the instant report on assembly.

(3) However, by October 7, 201, the time when the Plaintiff reported the instant assembly, the Franchisium did not hold an assembly with the same content as the report of the instant assembly until October 7, 201, and the Seoul Franchis Police Station did not recognize any particular content about the fact of the Fluchisium meeting during the above period.

[Reasons for Recognition] Facts without dispute, Gap evidence 15, 18, Eul evidence 1-1 to 26, the purport of the whole pleadings

D. Determination

(1) Confirmation of the reasons for the disposition

The defendant and the intervenor asserted that prior to the report of the assembly of this case, 30 lessees, including the plaintiff's representative, etc., on September 17, 201 to September 11, 201, were forced to hold an illegal assembly by means of taking over a ridge seafarer prior to the time from September 17, 201 to September 18, 201 without any report, and the police forces were mobilized to manage the assembly of this case. In light of the circumstances, the report of this case constitutes "a case where it is evident that it would pose a direct threat to public safety and order through collective violence, etc." Thus, the report of this case should be prohibited pursuant to Articles 8 (1) 1 and 5 (1) 2 of the Assembly and Demonstration Act. However, this is not identical to the facts that the defendant used as the basis of the disposition of this case, namely, "the time and place reported in king are concurrent with each other, and thus, it cannot be deemed a new reason."

(2) Determination

(A) The freedom of assembly and demonstration is an important fundamental right in realizing democratic politics, since it seeks common interests through collective expression of opinion in the form of freedom of expression and plays an effective role in the process of forming the political and social will of the people in a democratic state (see Constitutional Court Order 91HunBa14, Apr. 28, 1994). Therefore, restriction on freedom of assembly and demonstration is justified only when it is essential to protect other important legal interests, and in particular, prohibition of assembly may be allowed only when it is clearly necessary to protect the public safety and order. The prohibition of assembly is a final means that can be considered only after all other means that limit the freedom of assembly less than the freedom of assembly, i.e., the possibility of allowing assembly by attaching conditions (see Constitutional Court Order 200HunBa67, Oct. 30, 200).

(B) Comprehensively taking into account the facts and the purport of the entirety of the arguments as seen earlier, ① the Plaintiff’s membership of the instant shopping district with the aim of urging the lessee to return the unclaimed lease deposit, and the assembly’s purpose of holding a new meeting is difficult to conclude that the above quantity of the assembly per se conflicts with or interfere with the public’s exercise of office at the time of the instant assembly, which is the first day before and after the instant assembly, and the first day before and after the instant assembly, it appears that there was no possibility that the assembly would be conducted for the first time after the instant assembly, and that the first time after the instant assembly was conducted for the first time after the date of the assembly, and that there was no possibility that the number of participants would substantially interfere with the first day’s exercise of rights, including the first time after the instant assembly’s report, for the first time after the first time after the first time of the assembly, and that the first time after the first time of the assembly would be considerably less than 300 persons for the first time during which the assembly was reported (see subparagraphs 1 through 8 and 8).

4. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.

[Attachment] Relevant Statutes: omitted

Judges Park Jung-hwa (Presiding Judge)