In a case where: (a) the Defendant was indicted of violating the Assembly and Demonstration Act for holding an assembly notified of prohibition on the grounds that it would pose a direct threat to public peace and order; and (b) in the previous case, the Defendant was convicted of a violation of the same Act due to the participation in the assembly and demonstration, the case holding that the facts charged in the above charges and the facts charged in the previous final and conclusive judgment can be evaluated as identical to the basic facts.

In a case where: (a) the Defendant was indicted of violating the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) on the grounds that it is obvious that the Defendant would have a direct threat to public peace and order; (b) the Defendant participated in the above assembly and demonstration; and (c) received a final judgment of conviction due to the violation of the Assembly and Demonstration Act (hereinafter “the final judgment of conviction”); (d) the case holding that, although the facts charged prior to the assembly and the final judgment are different from the facts charged in that they are “main participation”; (b) the date and place of the crime are identical in that they are subject to the above assembly and demonstration; and (c) the organizer of the assembly and demonstration refers to an “person or organization with one’s own responsibility,” and (d) the purport of such assembly and demonstration is distinguishable from the organizer of the Assembly and Demonstration Act; and (e) the participants merely participated in the assembly and demonstration with the intent of such assembly and demonstration; and (e) where the organizer of the assembly and demonstration participated in the same assembly and demonstration with the same legal interest as those of the Assembly and Demonstration Act, it is not consistent with the facts charged.

Article 2 subparag. 3, Article 5(1)2, Article 8(1)1, and Article 22(2) and (4) of the Assembly and Demonstration Act; Article 326 subparag. 1 of the Criminal Procedure Act

Defendant 1 and two others

Defendants

Seoul Central District Court Decision 2014No5195 decided July 10, 2015

The part of the lower judgment against Defendant 3 is reversed, and that part of the case is remanded to the Seoul Central District Court. All appeals by Defendants 1 and 2 are dismissed.

The grounds of appeal are examined.

1. Summary of the facts charged in this case

Defendant 1 decided to hold a national conference on May 2, 2009, “the ○○○○○○○ Juvenile Council’s chairperson, Defendant 2, and Defendant 3’s head of the external cooperation team.” On May 2, 2009, the 50 organizations, including the ○○○○○○○○○○○○○ Council’s ○○○○○○○○○○○○○○○ Council, submitted a report on the assembly that “the 1st day of May 21, 2009’s candlelight 1st day of May 2, 2009,” with Defendant 1’s “the 1st day of May 16: 00 to 18:30, 2009’s 1st day of May 16, 2009,” and the 2nd day of May 23, 2009’s 1st day of May 24, 2006.”

2. As to Defendant 3’s ground of appeal

A. According to the records, Defendant 3 was indicted of violating the Act on Assembly and Demonstration due to the participation in the assembly of this case and the continued violent demonstration (hereinafter “Act”) and received a final and conclusive judgment of conviction due to the apparent threat to public safety and order by means of collective assault, intimidation, destruction, fire prevention, etc. (hereinafter “prior final and conclusive judgment”) (see Supreme Court Decision 2014Do15436, Oct. 15, 2015; hereinafter “prior final and conclusive judgment”).

B. The lower court determined that the facts charged in the previous final and conclusive judgment clearly and directly involve in an assembly or demonstration that may pose a direct threat to public safety and order, and that the facts charged in the instant case were held at an assembly which was prohibited and thus, there is a significant difference in the form of action or the legal benefits from damage, and thus, the two facts charged are different, although they relate to one assembly, they cannot be said to be the same facts, and that the prosecution against Defendant 3 cannot be deemed to constitute the case where the prosecution of the instant case was instituted again.

C. However, we cannot agree with the above determination by the court below for the following reasons.

The identity of facts charged or facts constituting an offense ought to be determined by taking into account the normative elements as well as the act of the defendant and its social factual basis, based on the legal function of the identity of facts (see, e.g., Supreme Court en banc Decision 93Do2080, Mar. 22, 1994; Supreme Court Decision 2009Do4785, Oct. 14, 2010).

However, the facts charged in the instant case and the facts charged in the final and conclusive judgment are different in that they are “main participation” and “participation.” However, in that they are subject to the instant assembly at the same time and at the same place, the date and place of crime are the same. In addition, the organizer of an assembly or demonstration refers to “person or organization taking part in an assembly or demonstration under his own responsibility” (Article 2 subparag. 3 of the Assembly and Demonstration Act). As such, only the participant merely taking part in an assembly or demonstration with the intent to hold it is distinguishable from the organizer, and it is difficult to quantly present the case where the organizer of an assembly or demonstration becomes the same organizer of an assembly or demonstration. In other words, the act of holding and participating in the same assembly should be deemed as having a relationship that is incompatible with each other. Furthermore, in light of the legal principles as seen earlier, it is reasonable to view that the violation of the Assembly and Demonstration Act (the facts charged in the instant case) by participating in an assembly or demonstration with the public safety and order as well as the basic facts charged as the facts charged in essence of the foregoing.

Nevertheless, the lower court deemed that the facts charged in the instant case and the facts charged in the final and conclusive judgment are not identical, and found guilty of the instant facts charged separately. In so determining, the lower court erred by misapprehending the legal doctrine on the identity of the facts charged or facts charged, and the validity of res judicata. The allegation contained in the grounds of appeal by Defendant 3 is with merit.

3. As to Defendant 1 and Defendant 2’s grounds of appeal

Based on its stated reasoning, the lower court convicted all of the charges of this case against Defendant 1 and Defendant 2.

The gist of the grounds of appeal by the above Defendants is that the police provided arbitrary notification of prohibition even though they submitted the report of assembly lawfully, and they merely sought the site of the assembly of this case, but the court below erred in finding facts against the rules of evidence, etc.

However, insofar as the selection and evaluation of evidence and the recognition of facts based thereon do not exceed the bounds of the principle of free evaluation of evidence, they belong to the discretionary authority of the fact-finding court. The allegation in the grounds of appeal is merely the purport of disputing the fact-finding that belongs to the exclusive authority of the lower court and does not constitute legitimate grounds of appeal. Furthermore, even if examining the reasoning of the lower judgment in light of the relevant legal principles and records, it does not seem that there was an

4. Conclusion

Therefore, the part of the lower judgment against Defendant 3 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. All appeals by Defendants 1 and 2 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)