2010No5054 Violation of the Assembly and Demonstration Act

1. A;

2. B

3. C.

4. D;

Both parties

St. B. B. L. L.S.

E Law Firm

Attorney F (for the defendant)

Seoul Central District Court Decision 2010Gohap1398 Decided December 15, 2010

April 7, 2011

All appeals filed by the Defendants and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Grounds for appeal by the Defendants

(1) As to the non-reported assembly

The court below found the Defendants guilty, even though they did not hold a meeting but did not have any legal obligation to report the assembly and demonstration, and even if they constitute an assembly for which the obligation to report the guides is recognized, it constitutes an assembly for which the duty to report is recognized, and thus constitutes a scope which can be accepted by social norms within the reasonable extent necessary to achieve the purpose of the assembly, and thus, it does not go against the social norms, and thus, it does not constitute an unlawful act

(2) As to the non-compliance with the dispersion order

The court below held that the defendants' order of dispersion was not legitimate, and therefore, it does not constitute a crime of non-compliance with the order of dispersion because it cannot be the object of the order of dispersion as a legitimate logical conclusion. Thus, the court below erred in finding that the crime of non-compliance with the order of dispersion cannot be established, and since the order of dispersion was not legitimate, since it does not directly pose a public safety and order.

(b) Grounds for appeal by prosecutors;

The punishment sentenced by the court below (a fine of 500,000 won) is too unhued and unjust.

2. Determination

A. Judgment on the grounds of appeal by the Defendants

(1) Determination on the non-reported assembly

Whether the press conference of this case constitutes an assembly

The Assembly and Demonstration Act (hereinafter referred to as the "Act") does not have any definition as to the concept of an assembly itself, but defines that a group of persons with respect to a demonstration refers to the act of carrying out a place where many people can freely pass through, such as roads, squares, parks, etc., under the common purpose, affecting the opinions of many and unspecified persons, or imposing pressure by showing their power or power (Article 2 subparagraph 2), and in light of the fact that an outdoor assembly is guaranteed and regulated under Article 3 or below, it is subject to guarantee and regulation under the above Act.

An assembly refers to a "temporary gathering of a specific or unspecified number of people in a certain place under the purpose of an order to externally express their opinions (see, e.g., Supreme Court Decision 2007Do1649, Jul. 9, 2009)."

In this case, according to the evidence duly adopted and examined by the court below, the defendants (as well as 50 members belonging to the National Countermeasure Committee for the Prevention of homicides from the government homicides, the defendants put up a fluor card with the same contents as the facts charged, put out relief in the press conference of this case, ② stated the physical fluoret worn by the defendants at the time as the "fluority for the resolution of fluor" in the fluor book, ③ held the above fluor book in order to cut off the above physical fluor book before the above fluor card after the completion of the fluor dog. Considering these facts, in light of the concept of the above assembly, the fluor dog in which the defendants participated, who formed a common opinion against the removal of fluoric acid, and expressed it externally, constitutes an assembly to be reported in accordance with the Assembly and Demonstration Act. Therefore, the defendants' assertion that the above fluor's opinion is not reasonable.

(5) Whether the act constitutes a justifiable act

"Acts which do not violate social norms" under Article 20 of the Criminal Act refers to acts which can be accepted in light of the overall spirit of legal order or the social ethics or social norms in its hinterland. Whether certain acts constitute legitimate acts that do not violate social norms and thus, the illegality of such acts is excluded should be determined individually and reasonably under specific circumstances. Thus, in order to recognize such legitimate acts, the following requirements should be met: (a) legitimacy of the motive or purpose of the act; (b) reasonableness of the means or method of the act; (c) balance between the protected interests and the infringed interests; (iv) urgency; and (v) supplementary nature that there is no other means or method other than the act (see, e.g., Supreme Court Decision 2008Do699, Oct. 23, 2008).

The head of the competent police station’s provision that a person who intends to hold an outdoor assembly or demonstration shall report certain matters to the head of the competent police station in advance by ascertaining the nature, size, etc. of the outdoor assembly or demonstration by the report, and protect legitimate outdoor assembly or demonstration, while preparing a prior measure to maintain public safety and order by preventing any infringement of others or community interests through the outdoor assembly or demonstration. Thus, the opinion to express through an outdoor assembly or demonstration is justifiable and cannot be deemed exempted from the duty to report (see, e.g., Supreme Court Decision 2008Do9049, Feb. 25, 2010). In addition, even if the head of the competent police station notified the organizer of the ban, if the head of the competent police station notified the organizer of the ban, it cannot be deemed a justifiable act that does not go against social rules. Thus, the Defendants’ assertion on this cannot be justified.

(2) Judgment on the non-compliance with the dispersion order

As seen earlier, the Defendants’ motion constitutes an assembly. As such, the Defendants’ assertion that the Defendants’ failure to comply with the dispersion order cannot be established on the premise that it is not an assembly.

In addition, there is no basis to view that there is an additional requirement such as “the case of causing direct danger to the public safety and order” in the dispersion order under the Assembly and Demonstration Act, and in issuing the dispersion order to an illegal assembly which has failed to fulfill the duty to report, if such additional requirement is required, the relevant provisions of the Assembly and Demonstration Act stipulating the duty to report will lose effectiveness, and even if it falls under an illegal assembly, it is not a case of causing direct danger to the public safety and order, and physical conflict will occur frequently by refusing to comply with the dispersion order. In light of this, the Defendants’ assertion that the dispersion order is unlawful on the ground that the assembly in this case does not cause direct danger to the public safety and order is not acceptable.

B. Determination on the prosecutor's grounds for appeal

In full view of the following circumstances: (a) the developments leading up to the instant assembly, and all other circumstances that form the conditions for sentencing as shown in the records, such as the Defendants’ age, character and conduct, environment, motive and means of the crime, and circumstances after the crime, the lower court’s punishment is too uneasible and unreasonable. Therefore, the Prosecutor’s assertion is without merit.

3. Conclusion

Therefore, the appeal by the defendants and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition (However, since it is clear that the "Peremptory Commissioner of the Party No. 4 of the judgment of the court below" is the error of the "Peremptory Commissioner of the Democratic Labor Party", it is correct ex officio in accordance with Article 25 (

The presiding judge or assistant judge shall be appointed;

Judges Kim Gin-ju

Suspension of the Judge