(영문) 대법원 2015.8.27. 선고 2012도14625 판결

1. According to Article 12(1) of the Assembly and Demonstration Act and Article 12(2) of the Enforcement Decree of the Assembly and Demonstration Act, the head of the competent police authority may prohibit an assembly or demonstration on major roads of major cities prescribed by Presidential Decree, if deemed necessary to ensure traffic flow, or restrict the assembly or demonstration with conditions for maintaining traffic order. In cases of restricting the assembly or demonstration with conditions attached thereto, the head of the competent police authority shall specifically state such conditions and notify the organizer in writing. The notification of conditions for maintaining traffic order as prescribed by Article 12(1) of the Assembly and Demonstration Act is different from the notification of prohibition and restriction of the assembly or demonstration as prescribed by Article 8 of the Assembly and Demonstration Act. In light of the detailed methods and developments leading up to such notification, and the relationship between the recipient and the organizer, if the organizer reaches an objective state where the organizer becomes aware of such contents, the notification should be deemed valid even if the method of service of notification of prohibition and restriction under Article 8 of the Assembly and Demonstration was not satisfied (see, e.g., Supreme Court Decision 2013Do14.

2. In full view of the reasoning of the lower judgment and the duly admitted evidence, the following circumstances are revealed.

A. At around 18:05 on August 23, 2011, E (hereinafter referred to as “E”) submitted to the commissioner of Seoul Local Police Agency a total of 45 places, including: 00:0-24:00 on August 27, 2011 to August 28, 2011; 45 units, such as an independent sending station No. 1 sending station; E: The chairperson of the host organization, the chief of the J organization, the chief of the liaison office: 30 million persons (if the number of persons is unknown), and the method of demonstration: An independent sending station, speech, publicity, cultural event, or entertainment, and a total of 45 lanes of India-2, including the number of persons, etc. and the report on the use of an outdoor assembly (hereinafter referred to as “exclusive demonstration”).

B. On August 25, 201, based on the provisions of Articles 8(1) and (2), 11, and 12 of the Assembly and Demonstration Act, the Seoul Local Police Agency notified the Seoul Local Police Agency that the rest of the outdoor assembly ( demonstration and progress), excluding two sections, such as the independent door 1 ? Hanjin Heavy Industries, should be prohibited. In addition, on August 26, 2011, the Seoul Local Police Agency’s name “Matters to be observed: two parallels, which are possible due to the failure to be prohibited during the reported assembly ( demonstration and progress), should be revised to “5-lane-lane-lane-area 1 in the single line ? the front line of the Seoul Western Station ?” and “the direction of passage excluding bus exclusive lanes,” and “the direction of passage 2-lane-lane-lane-lane-lane-lane-lane-type 1 in the middle line ? the direction of passage excluding the bus exclusive lanes excluding the direction of passage.”

D. On August 26, 201, Seoul Southern Police Station Information and its slopeF sent the instant notice to G, a director-general of the organization bureau, after visiting the instant notice on August 26, 201, and finding E office as a P building in Jung-gu Seoul, Seoul, where the E office is located, called the E, explaining the content of the said notice, and inquiring about the method of delivery. As G said “I put it in mail”, the said notice was inserted in E mail.

3. Examining the above circumstances in light of the legal principles as seen earlier, it can be recognized that F input of the instant notification form setting the conditions for maintaining traffic order in this case into the said E mail at the request of G, and that E was placed in an objective condition by which the content of the instant notification was known by social norms, and therefore, it can be deemed that the instant notification form was lawfully notified to E, the organizer.

4. Nevertheless, the court below held that the demonstration of this case cannot be deemed to have been lawfully notified to E by F, and on the erroneous premise that the condition was not limited to the conditions set forth in the notice, and that the condition was not properly known to E, the court below did not examine whether the demonstration of this case, in light of traffic condition, etc., the Defendant’s participation in the act of serious violation, actually caused traffic obstruction, and the Defendant could be held liable for a crime as a co-principal with regard to traffic obstruction, without examining whether the demonstration of this case can be deemed to have been significantly exceeded the scope of the first report prior to the grant of the condition, or there was an intention to commit such violation. Recognizing that it is difficult to see that the demonstration of this case was not proven to have committed a crime as to the charge of general traffic obstruction.

Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on notification of conditions for maintaining traffic order under the Assembly and Demonstration Act, thereby failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal assigning this error is with merit.

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.