[1] Whether the decision of inconsistency with the Constitution on the prohibition of outdoor assembly at night under the Assembly and Demonstration Act is effective against “a person who hosts an assembly” and “a person who simply participates in the assembly” (affirmative)

[2] Where the court below convicted the Defendant of the facts charged that he participated in the night outdoor assembly by applying Article 23 subparag. 3 and the main text of Article 10 of the Assembly and Demonstration Act, but the Constitutional Court rendered a ruling of inconsistency with the Constitution as to Article 23 subparag. 1 and the main sentence of Article 10 of the same Act after the decision of the court below, and the Constitutional Court urged the provisional application and legislative improvement by setting a certain time limit, the case holding that the Defendant’s case of participating in the night outdoor assembly should be acquitted under the former part of Article 325 of the Criminal Procedure Act

[3] In a case where the defendant was indicted to the effect that he interfered with traffic by participating in an outdoor assembly at night, the case holding that the court below erred by misapprehending the legal principles as to the number of crimes committed on the premise that the "violation of the Assembly and Demonstration Act" and "Interference with general traffic" are in substantive concurrent relations

[1] Article 10 of the Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007) and Article 23 subparag. 1 of the same Act provide that “an outdoor assembly” part of Article 10 and Article 23 subparag. 1 of the same Act are inconsistent with the Constitution. The above provisions continue to apply until the legislator amends the Constitution as of June 30, 2010.” The National Assembly rendered a ruling of inconsistency with the Constitution, and the above provisions of the Assembly and Demonstration Act (wholly amended by Act No. 1068, Jun. 30, 2010) were not amended. Article 23 of the same Act also provides that the core point of the ruling of inconsistency with the Constitution is the punishment for the outdoor assembly part as of Article 10 main sentence of the same Act, which is the main point of the ruling of inconsistency with the Constitution, and thus, Article 10 subparag. 1 of the same Act cannot be deemed as a nonconformity with the Constitution. 3 of the same Act.

[2] In a case where the court below convicted the Defendant of the facts charged that the Defendant participated in an outdoor assembly at night by applying the main sentences of Articles 23 subparag. 3 and 10 of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”), and where the Constitutional Court rendered a ruling of inconsistency with the Constitution as to Article 23 subparag. 1 and the main sentence of Article 10 of the Assembly and Demonstration Act, and the provisional application and legislative improvement were not made by the deadline, the court held that the above ruling of inconsistency with the Constitution as to the organizer as provided by Article 23 subparag. 1 of the Assembly and Demonstration Act, but the above ruling of inconsistency with the Constitution as to the "a simple participant" as provided by subparagraph 3 of Article 23 of the Assembly and Demonstration Act, has its effect on the grounds that Article 23 subparag. 3 of the Assembly and Demonstration Act and Article 23 of the main sentence of Article 10 of the Assembly and Demonstration Act have retroactively lost its effect, and thus, the court below acquitted the Defendant pursuant to the former part of Article 325 of the Criminal Procedure Act.

[3] In a case where the defendant was indicted to the effect that he participated in an outdoor assembly at night and interfered with traffic, the case holding that the court below erred in the misapprehension of legal principles as to the number of crimes, on the premise that the defendant's "violation of the Assembly and Demonstration Act" and "Interference with general traffic" are in a substantive concurrent relationship, since it is reasonable to view that the obstruction of general traffic caused by the assembly and demonstration and the obstruction of traffic constitutes an ordinary concurrent relationship

[1] Articles 10 and 23 subparag. 1 and 3 of the Assembly and Demonstration Act / [2] Articles 10 and 23 subparag. 1 and 3 of the Assembly and Demonstration Act; Article 325 of the Criminal Procedure Act / [3] Articles 37, 40, and 185 of the Criminal Act; Articles 10 and 23 subparag. 3 of the Assembly and Demonstration Act

[1] Constitutional Court en banc Decision 2008Hun-Ga25 Decided September 24, 2009 (Hun-Gong156, 1633) en banc Decision 2008Do7562 Decided June 23, 201 (Gong2011Ha, 1487)

Defendant

Defendant

Law Firm Won, Attorneys Won-soo et al.

Seoul Central District Court Decision 2008No3119 Decided November 14, 2008

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

1. The grounds of appeal are examined.

Of the facts charged in the instant case, the lower court upheld the first instance judgment convicting the Defendant of each of the facts charged that the Defendant participated in the night outdoor assembly by applying Article 23 Subparag. 3 and the main sentence of Article 10 of the Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007; hereinafter “Act”).

However, following the pronouncement of the judgment of the court below, the Constitutional Court rendered a ruling of inconsistency with the Constitution that "the provisions of the main sentence of Article 10" in Article 10 and Article 23 subparagraph 1 of the Assembly and Demonstration Act are inconsistent with the Constitution. The above provisions continue to apply until the legislative amendment is made on June 30, 2010 (the Constitutional Court en banc Decision 2008Hun-Ga25 Decided September 24, 2009). The National Assembly did not amend the above provisions of the Assembly and Demonstration Act which are decided to be inconsistent with the Constitution by June 30, 2010. Article 23 of the Assembly and Demonstration Act provides that the part of the outdoor assembly, which is the core point of the above ruling of inconsistency with the Constitution, is the person who hosts the outdoor assembly at night (Article 10 subparagraph 1) and simply participates (Article 3), and thus, the above provisions are subject to a ruling of inconsistency with the Constitution as to the prohibition of inconsistency with the statutory provisions of Article 10 of the Assembly and Demonstration Act.

Therefore, the part of Article 10 of the Assembly and Demonstration Act and Article 23 of the main sentence of Article 10 of the Assembly and Demonstration Act, which have not been amended until the amendment deadline prescribed by the above decision of inconsistency with the Constitution, shall retroactively lose its validity (see Supreme Court en banc Decision 2008Do7562, Jun. 23, 2011). As to the case involving the case involving the night outdoor assembly during which a public prosecution was instituted by applying the said provisions, a verdict of innocence shall be rendered pursuant to the former part of Article 325 of the Criminal Procedure Act.

Therefore, among the judgment below, the part which found guilty of participation in night outdoor assembly cannot be maintained as it is. The ground of appeal pointing this out is with merit.

2. Scope of reversal

The lower court: (a) deemed that each crime of violation of the Assembly and Demonstration due to participation in night outdoor assembly and demonstration and each crime of general traffic obstruction are in substantive concurrence with each other; (b) sentenced one fine on the grounds that each crime of violation of the Assembly and Demonstration is concurrent with each other under the former part of Article 37 of the Criminal Act; and (c) maintained the first instance judgment which sentenced one imprisonment for the same reason with respect to each

However, it is reasonable to view that the assembly and demonstration and the general traffic obstruction thereby constituted are in a mutually competitive relationship. Accordingly, the lower court, which determined a separate punishment on the premise that the crime of violation of the Assembly and Demonstration Act and the general traffic obstruction are in a substantive concurrent relationship, erred by misapprehending the legal doctrine on the number of crimes, thereby adversely affecting the conclusion of the judgment. Therefore, the lower court’

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)