208Do7505 A. Injury resulting from special obstruction of performance of official duties

(b) General traffic obstruction;

(c) Damage to public goods;

(d) Violation of the Assembly and Demonstration Act;

(e) Violation of the Protection of Military Installations;

1. (a) b. d.

A person shall be appointed.

2. (a)(b)(c)(d)(e);

A person shall be appointed.

Defendants and Prosecutor

Attorney C (Court-Appointed for the Defendants)

Seoul High Court Decision 2007No2937 Decided July 31, 2008

August 20, 2014

The conviction part of the judgment below is reversed, and that part of the case is remanded to the Seoul High Court.

All of the Prosecutor's appeals are dismissed.

1. The grounds of appeal are examined.

(1) We examine the Defendants’ grounds of appeal.

For the reasons indicated in its reasoning, the lower court maintained the first instance judgment convicting the Defendants of this part of the charges on the following grounds: (a) the Defendants’ holding of an assembly prohibited by the Unreported Outdoor Assembly and the Police Authority several times; (b) obstructed traffic by occupying lanes; and (c) committed an unlawful act resulting in violent incidents; and (c) thus, it cannot be recognized as a justifiable act; and (d) there is no possibility of expectation of lawful act to the Defendants; and (b) there is a dolusor’s intentional act and contact with the Defendants in order or secretly with the Defendants; and (c) thus, the conspiracy co-principal was established.

Examining the evidence duly adopted and examined by the lower court and the first instance court in light of the relevant legal doctrine, the lower court’s determination (excluding the first instance court’s determination that ex officio was in violation of the Act by holding an outdoor assembly at night) is justifiable. In so doing, there were no errors by misapprehending the legal doctrine on political act or expectation, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

(2) Prosecutor's grounds of appeal are examined.

The prosecutor’s ground of appeal as to the acquittal portion of the lower judgment is ultimately purporting to criticize the selection of evidence and fact-finding which belong to the lower court’s exclusive jurisdiction, and it is difficult to be deemed a legitimate ground of appeal. Furthermore, even upon examining the record, there were no errors by misapprehending the legal doctrine regarding functional control of a co-principal, or by exceeding the bounds of the principle of free evaluation of evidence in violation

2. The decision is made ex officio;

The lower court affirmed the first instance judgment convicting the Defendants of violating the provisions of Article 20 subparag. 1 and the main text of Article 10 of the former Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007; hereinafter referred to as the “former Assembly and Demonstration Act”), by applying the main text of Article 20 subparag. 1 and the main text of Article 10 of the former Assembly and Demonstration Act, the Defendants jointly hold a night outdoor assembly with D, etc. on March 30, 2007 and on the following day. Defendant B jointly held the night outdoor assembly with E, etc. on November 29, 2006.

On April 24, 2014, which was following the pronouncement of the lower judgment, the Constitutional Court rendered a decision on April 29, 2011 that applied the part concerning Article 10 of the former Assembly and Demonstration Act and Article 10 main sentence of Article 20 subparag. 3 of the former Assembly and Demonstration Act to "any outdoor assembly or demonstration from sunset time to 24 days from the same day."

The above decision of the Constitutional Court, despite the form of expression in the above order, is deemed to be the purport of partial unconstitutionality that the part from the time after sunset to 24 days from the same day is in violation of the Constitution. As such, Article 47 of the Constitutional Court Act is effective as a decision of unconstitutionality under Article 47 of the same Act. Further, Article 20 of the former Act is based on the common punishment of the part of the night outdoor assembly or demonstration under Article 10 of the same Act. However, the statutory punishment is different depending on whether a person who hosts an outdoor assembly or demonstration at night is a person who has held an outdoor assembly or demonstration at night (Article 10 subparagraph 1) or a simple participant (Article 20 subparagraph 3). Accordingly, the above decision of the Constitutional Court is just based on the existence of a person who has held an outdoor assembly or demonstration at night.

Although it is against the participants, since the above part of the night outdoor assembly among the night outdoor assembly under the main sentence of Article 10 of the former Assembly and Demonstration Act was decided as unconstitutional, the above unconstitutional decision also becomes effective against the organizer who was prosecuted for violating the prohibition of outdoor assembly at night.

Therefore, the part concerning "from sunset time to 24 days of the same day" under the proviso of Article 47 (2) of the Constitutional Court Act is retroactively null and void pursuant to the proviso of Article 47 (2) of the same Act. Thus, the part concerning the defendants who prosecuted by applying the above provision of the same Article shall be deemed to fall under the case where the part concerning the defendant's holding of the night outdoor assembly from sunset time to November 29, 2006 and the part concerning the holding of the night outdoor assembly from November 29, 2006 of the same day by November 29, 2006, constitutes a case where the crime is not committed. Accordingly, among the judgment below, the part convicting the above part of the facts charged was not maintained.

3. We examine the scope of reversal.

As seen above, among the violation of the Assembly and Demonstration Act due to the holding of an outdoor assembly at night, ① the part holding an outdoor assembly at night from March 30, 2007 to 24th of the same day from March 30, 2007 and ② the part holding an outdoor assembly at night on November 29, 2006 by Defendant B should be reversed. The part holding an outdoor assembly at night after November 29, 2006, which exceeds the part holding an outdoor assembly by 24 hours as a relation between the above (i.e., the part holding an outdoor assembly after 0 hours following the day, should also be reversed

In addition, as long as each crime of violation of the Assembly and Demonstration Act due to the holding of night outdoor assembly is reversed as above, the court below erred by misapprehending the legal principles as to the crime of violation of the Assembly and Demonstration Act and the violation of the general traffic obstruction over the following day (see Supreme Court Decision 2008Do10960, Aug. 25, 2011) and the remaining crimes against which one imprisonment is imposed shall also be reversed.

4. Therefore, the part of the judgment below's conviction is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's appeal is all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han

Justices Yang Chang-soo

Justices Kim Chang-suk

Justices Jo Hee-de