2017No3002 Violation of the Assembly and Demonstration Act

1. A;

2. B

3. C.

Both parties

Kim Young-gu (Court Prosecution) and Kim Young-gu (Court Trial)

D. (For the Defendants)

Attorney E

Daejeon District Court Decision 2015Ma622 Decided September 8, 2017

June 22, 2018

The judgment of the court below is reversed.

Defendants are not guilty.

The summary of the judgment of innocence shall be published.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misunderstanding of legal principles are merely an act of the Defendants as stated in the facts charged in the instant case, and thus, the Defendants’ act should be reported in advance pursuant to Article 6(1) of the Assembly and Demonstration Act (hereinafter “Act”) and it does not constitute an outdoor assembly subject to regional restrictions pursuant to Article 11 subparag. 1 of the Act.

B) Even if an outdoor assembly falls under an outdoor assembly, illegality is dismissed as a justifiable act. 2)

The sentencing of the court below (Defendant A: fine of 2 million won, fine of 1 million won, and fine of 50 million won for Defendant C) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts

Defendant C is a co-principal of the organizer under Article 23 subparag. 1 of the Assembly and Demonstration Act, since functional control is recognized in holding an assembly.

2) Unreasonable sentencing

The sentencing of the court below is unfair because it is too unhued.

2. Facts charged;

A. Defendant A

On June 26, 2014: From 00 to 13: 30, the Defendant mobilized ten members of the Korean National Sports Center for the purpose of strengthening medical public nature, such as B and C, in front of the Daejeon Daejeon District Prosecutors' Office, from around 15:0 to 13:0, the Defendant called "a banner stating the contents of the "a banner" at the reception of the accusation letter of abuse of authority and duty abandonment F Minister of Health and Welfare". The Defendant abolished the guidelines for the for-profit subsidiary, "five diskettes in which the phrases such as the phrase "a banner is stated" were put to the members of the Assembly, and the participants of the Assembly filed a complaint according to the Defendant's initiative, namely, the Enforcement Rule of the Medical Service Act, the Enforcement Rule was abolished to the effect that the participants opposed to the amendment of the Enforcement Rule of the Medical Service Act, such as going beyond relief.

As a result, the Defendant held an assembly without reporting, and held an outdoor assembly at a place within 100 meters from the boundary of the office building of the Daejeon District Court where the outdoor assembly is prohibited, in collusion with ten members of the National Sports Center for the purpose of strengthening medical public nature such as B and C.

B. Defendant B, 0

The Defendants conspired with 10 members of the Korean National Sports Center for the enhancement of medical public nature, including A, and held an outdoor assembly at a place within 100 meters from the boundary of the office building of the Daejeon District Court where the outdoor assembly is prohibited by participating in the above assembly at the same time and place.

3. Judgment on the misunderstanding of facts and misapprehension of legal principles by the Defendants

(a) Facts of recognition;

According to evidence, the following facts can be acknowledged:

1) On June 26, 2014: around 00 on June 13, 2014, 6 to 7, including the Defendants: around the Daejeon District Public Prosecutor’s Office, “Pursuant to the list of the reporters who received a written accusation from the Minister of Health and Welfare for abuse of authority and occupational abandonment of duties”, Defendant A took five diskettes in which the phrase “A” was written. Defendant A reported the society, Defendant B took personnel advice, and Defendant C read the written interview. The participants filed a complaint according to the Defendant’s initiative, namely, “the act of this case” (hereinafter “the act of this case”). Defendant A sent out relief of the contents of “the act of this case”), i.e., abolition of the Enforcement Rule of the Medical Service Act (hereinafter “the act of this case”). From 130 to 100: 10:31:31:31 of the participants were dissolved, and Defendant A was accused of around 14:31 of the following facts.

3) At the time, micro-, ampample-, ample-, and small-sized ample-, (after the failure of the ample-, the level of noise was below the noise level as set out in the Framework Act on Environmental Policy, 54.7dB-55.9dB.

4) At the time, participants, including the Defendants, were gathered in front of the broad columns of the Daejeon District Prosecutors’ Office, and did not interfere with the entrance or exit of the vehicle. 6-8 reporters covered participants, and did not interfere with the entrance or exit of the vehicle with the vehicle, as well as the vehicle.

B. Whether the instant act constitutes an outdoor assembly under the Assembly and Demonstration Act

1) The meaning of freedom of assembly and demonstration

Article 21(1) of the Constitution provides that "All citizens shall have the freedom of press and publication and the freedom of assembly and association." Article 21(1) of the Constitution guarantees the freedom of assembly along with the freedom of press and publication. The freedom of assembly includes the freedom of assembly, i.e., the freedom of assembly, which is to affect the will of an unspecified number of people.

In order to guarantee dignity and value as human beings, the Constitution of the Republic of Korea refers to free expression of character as one of the highest values. The freedom of assembly and demonstration has the function of promoting dynamic integration by allowing citizens to contact with others, exchange information and opinions, and collectively express their opinions for common purposes, thereby promoting dynamic integration.

The freedom of assembly and demonstration plays a role in contributing to political stability by openly expressing complaints and criticism about political and social phenomena.

In addition, it functions as a means of direct democracy in the event that the representative functions are weakened during the period between elections and elections.In modern society, the minority group in which the passage of expression of opinion is obstructed or restricted can express its opinion through freedom of assembly.

In this respect, the freedom of assembly and demonstration, along with the freedom of speech and publication, is an essential element in the representative democratic state A. The constitutional guarantee of the freedom of assembly is a constitutional decision on the "multi-original society where there exist tolerance and diverse views" (the Constitutional Court of Korea on October 2003).

30. See Supreme Court Order 2000HunBa67, 83, etc.)

2) The purport of the prior report system for outdoor assembly and demonstration

Freedom of assembly and demonstration shall be guaranteed only for peaceful assemblies and demonstrations. An expression of opinion by peaceful means is protected, but it is not allowed to compel the use of violence.

Since an assembly and demonstration entails collective action by many people, it is highly likely to cause public peace and order or legal peace and peace compared to personal expression. In particular, compared to indoor assemblies and demonstrations, an outdoor assembly and demonstration has a high risk of conflicting with other people's rights and interests, and may cause inconvenience to the general public or cause danger to public order, such as traffic congestion, in the course of collective action while using public places, such as roads, etc.

The Assembly and Demonstration Act generally guarantees the right to peaceful assembly and demonstration (Articles 3 and 5); however, where a person who intends to hold an outdoor assembly and demonstration submits a report stating the purpose, date, time, place, organizer, etc. to the chief of the competent police station from 72 hours to 48 hours prior to the commencement of the outdoor assembly, thereby restricting the freedom of assembly and demonstration by law (Article 6(1)); and such prior report is being made by the chief of the competent police station upon receipt of the report, to protect legitimate outdoor assembly by ascertaining the nature and scale of the outdoor assembly in advance and to prevent infringement of other persons or community interests through the outdoor assembly (see, e.g., Supreme Court Decisions 207Do1649, Jul. 9, 2009; 2015Do17738, Dec. 22, 2017).

3) Criteria for determining whether an outdoor assembly constitutes an outdoor assembly

An assembly under the Assembly and Demonstration Act refers to an assembly that is temporarily gathered at a certain place for the purpose of externally expressing an opinion by forming a common opinion by a specific or unspecified number of people (see, e.g., Supreme Court Decision 2007Do1649, Jul. 9, 2009). An outdoor assembly refers to an assembly in a place where there is no ceiling or no erosion control is closed (Article 2 subparag. 1 of the Assembly and Demonstration Act).

If a certain act constitutes an outdoor assembly as prescribed by the Assembly and Demonstration Act, it should first be provided with the sign of the concept of the outdoor assembly. Furthermore, considering that the duty to report is granted to the outdoor assembly, it is also necessary to consider in the judgment as to whether it is necessary to take measures to prevent conflicts of interest between the participants and the general public in advance at the stage prior to the holding of the outdoor assembly in consideration of the purport of the prior report system in order to smoothly guarantee the constitutional significance of the freedom of assembly and the freedom of assembly.

4) Determination as to the instant act

In full view of the following circumstances revealed through the above facts and records, the evidence submitted by the prosecutor alone is insufficient to recognize the instant act as an outdoor assembly under the Act.

① According to the summary of the program that appears to have been prepared prior to the instant act (the 19th page of the investigation record), the purpose of the instant act was to visit the reporter when receiving a written accusation from the Daejeon District Prosecutor’s Office. The purpose of the instant act was to have been constituted by Defendant A’s society, Defendant B’s remarks, the purport of the attorney’s accusation, and Defendant C’s oral remarks, and to have small participants talk for a relatively short period of time from the beginning.

② In fact, 6 to 7 participants, including the Defendants, committed the instant act for about 10 minutes, and did not occur much in noise level, and there did not occur any hindrance to vehicle traffic and road compensation, and there did not occur any conflict of interest between the participants and the general public.

(3) It shall not be deemed that there is a need to protect the participants or to maintain the public peace and order due to concerns over any conflict of interest or traffic impairment between participants, including the organizer and the general public in advance.

④ In the process of a press conference, the Defendants used diskettes and engaged in any act to attract relief. However, it is reasonable to regard such an act as falling under the category of freedom of expression of opinion as an audio-visual method for the booming and efficiently transmitting the content of a press conference.

⑤ As seen earlier, it cannot be readily concluded that an outdoor assembly subject to a prior report as prescribed by the Assembly and Demonstration Act is an outdoor assembly solely on the ground that the participants used diskettes or went out of rescue, etc., insofar as it does not cause conflicts of interest between the general public and participants.

C. It is insufficient to recognize that the instant act constitutes an outdoor assembly under Article 6(1) of the Assembly and Demonstration Act. As such, Defendant A’s management of the instant act cannot be deemed as a violation of Article 6(1) of the Assembly and Demonstration Act. It is insufficient to recognize that the instant act constitutes an outdoor assembly under Article 11 subparag. 1 of the Assembly and Demonstration Act. Thus, the Defendants’ instant act cannot be deemed as a violation of Article 11 subparag. 1 of the Assembly and Demonstration Act. Furthermore, the Defendants’ instant act cannot be deemed as a violation of Article 11 subparag. 1 of the Assembly and Demonstration Act in the following respect. Furthermore, the Defendants’ instant act cannot be deemed as a violation of Article 11 subparag. 1 of the Assembly and Demonstration Act (hereinafter “instant statutory provision”).

The interpretation of a penal provision should be interpreted to have logical consistency in light of the language meaning of fishing gear or sentences (grammatic interpretation) as well as relationship with other Acts. In a case where the meaning of a penal provision cannot be sufficiently understood as a legal norm, considering the overall legal order’s ideology, function of a penal provision, legislative history, legislative intent and purpose, purpose of a penal provision, purpose of protection, form of an act, etc., the meaning of a penal provision can be embodied within the ordinary meaning of a penal provision (see, e.g., Supreme Court en banc Decision 2001Do2819, Feb. 21, 2002; Supreme Court Decision 2002Do2363, Jan. 10, 2003; Supreme Court Decision 205Do6525, May 12, 2006; Supreme Court Decision 2010Do416, Apr. 26, 2016).

28. Supreme Court en banc Order 2015Do1362 Decided June 22, 2006 (Supplementary Opinion) 2004S42 Decided June 22, 2006

3) In the case of the instant legal provision, the constitutional interpretation of the instant legal provision is consistent with the Constitution to interpret that an assembly irrelevant to the legislative purpose of the instant legal provision, i.e., the protection of the court’s order for protecting judicial functions, and securing the independence of the trial, is exceptionally permissible, rather than always prohibited at an assembly in the vicinity of the courts of various levels. The reasons are as follows.

① The instant legal provision does not explicitly stipulate exceptions such as Article 11 subparag. 4 (Diplomatic Office or Diplomatic Office of Diplomatic Office) of the Assembly and Demonstration Act. According to the literal interpretation, there may be room for interpreting that outdoor assembly and demonstration in neighboring courts are absolutely prohibited. However, according to one interpretation and application of a certain legal provision as seen earlier, if it results in unconstitutional violation, and if it can be seen that it is in conformity with the Constitution according to other interpretation methods, the method of interpretation consistent with the Constitution ought to be chosen.

② The legislative purpose of the instant legal provision is to protect the judicial function protection court’s peace and order and secure the independence of trial in that the judicial action of the State should not be subject to external influence or control. However, such characteristics of the court should be consistent with the spirit of Article 21 of the Constitution, including the freedom of assembly, in particular, the freedom of assembly place decision.

③ The impact of neighboring assemblies of the court on the function of the court may vary depending on the size of assembly, organizer, objective and intent of participants, behavior, etc. For example, assemblies may be held in which civil and criminal security trials do not pose a risk to the function and well-being of the court, such as assemblies on holidays during which the entire civil and criminal security trials do not run, except for small-scale assemblies that are unlikely to spread by large-scale assemblies or demonstrations, and the examination of the quality of warrants of the court. Therefore, all neighboring assemblies of the court cannot be assessed as uniformly undermining the function of the court.

④ Most of the courts and prosecutors' offices in the Republic of Korea have the same complex. In the case of small and medium cities, there are many cases where government agencies, local governments, and other public institutions, such as local governments, are located in the vicinity of the court. Considering the instant legal provision as an absolute prohibition provision, unlike the legislative intent, the effect of setting the legal provision of this case to the government offices, such as prosecutors' offices, located within an area where 100 meters are located

No. 1) Even if a nearby assembly of the court is likely to indirectly affect the judicial function, the Assembly and Demonstration Act provides for general regulatory measures according to the nature and quantity of assembly, such as prohibition of violence assembly, restriction on outdoor assembly report, noise generation, dispersion order, etc. Therefore, it is possible to achieve legislative purpose such as the protection of judicial function.

(6) In cases where a complete prohibition of an assembly in the vicinity of a court is made, without considering the specific situation, it shall not be in harmony with the private interest of securing judicial functions and freedom of assembly by completely prohibiting an assembly that is not likely to impede the independence of the judiciary function and the trial without considering the specific situation.

7) As such, deeming that the instant legal provision to be absolutely prohibited from an assembly nearby the court by literal interpretation is inconsistent with the Constitution because it is difficult to recognize the minimum of infringement and the balance of legal interests. Considering the legislative purpose such as protecting the court’s function of judicial function protection, securing the independence of trials, and harmony with the constitutional spirit such as the freedom of assembly, it is consistent with the Constitution that exceptionally permissible assemblies irrelevant to the legislative purpose such as protecting judicial function, etc.

In full view of the following circumstances revealed through the above facts and records, the evidence submitted by the prosecutor alone is insufficient to recognize the instant act as an outdoor assembly prohibited under Article 11 subparag. 1 of the Assembly and Demonstration Act.

① As seen earlier, the instant act was committed in the Daejeon District Public Prosecutor’s Office while receiving a written accusation against the Minister of Health and Welfare, and thus, it is clear that the court does not directly be the subject of the case. The question of Daejeon District Public Prosecutor’s Office was located within 100 meters from the boundary of the office of the Daejeon District Public Prosecutor’s Office.

② The Defendants stayed in the door of Daejeon District Public Prosecutor’s Office, and carried out the instant act by carrying a banner and skets without blocking the entrance and exit of vehicles, and reading out the press dogs. The size of participants is small, and it was carried out for a relatively short period of time. There was no risk of spreading by large-scale assembly or demonstration.

③ The Defendants received a written accusation, and the receipt of the written accusation leads to the commencement of criminal procedures upon the receipt of the written accusation and the future warrant is requested or prosecuted, there may be room for the court’s judgment to intervene. However, in light of the fact that the process of receipt of the written accusation is limited to the phase of receipt of the written accusation, and that a small-scale press check method was taken during a relatively short period of time, the mere fact that a non-governmental organization filed an accusation against a State agency may affect the function of the judiciary or the independence of the trial.

E. Sub-decision

The judgment of the court below that found the Defendants not guilty on the ground that the facts charged in this case did not have proof of the facts charged fall under the category of crimes and should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act,

4. Conclusion

Since the defendants' appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following decision is rendered through pleading.

again, the reasons for the judgment

The facts charged of this case are as stated in the above 2. Paragraph, and as stated in the above 3. Paragraph, since there is no proof of criminal facts as stated in the above 3. Paragraph, the judgment of innocence shall be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence shall be announced in accordance with

Justices Kim Jong-soo

Judges Seo-Gyeong et al.

Judges Park Jong-woo

1) Article 11 of the Assembly and Demonstration Act (Prohibited Place for Outdoor Assembly and Demonstration) Anyone is an office building or house falling under any of the following subparagraphs:

No outdoor assembly or demonstration may be held at a place within 100 meters from the boundary line.

1. The National Assembly History, each level of court, and the Constitutional Court;

2. The President, the Speaker of the National Assembly, the Chief Justice of the Supreme Court, and the President of the Constitutional Court;

3. The Prime Minister’s mission: Provided, That this shall not apply to the case of a senior executive officer;

4. Diplomatic offices or residences of heads of diplomatic missions in the Republic of Korea: Provided, That diplomatic missions shall be conducted in any of the following cases:

The same shall not apply when it is deemed that there is no possibility of infringing on the functions or well-being of institutions or diplomatic missions.

(a) Where it is not directed at the diplomatic offices or residences of heads of diplomatic missions;

(b) Where it is unlikely to spread due to a large-scale assembly or demonstration;

(c) Where a foreign service agency is held on a holiday in which it has no diplomatic service;