[1] Whether the Constitutional Court's ruling of inconsistency with the Constitution as to the main sentence of Article 10 and Article 23 subparagraph 1 of the Assembly and Demonstration Act, which prohibit and punish the "explosive outdoor assembly", affects the "a simple participant" who was prosecuted for violating the prohibition of night outdoor assembly (affirmative)

[2] Whether the decision of the Constitutional Court on the main sentence of Article 10 and Article 23 subparag. 3 of the Assembly and Demonstration Act, which is the prohibition and punishment provision of night demonstration, has the effect of the decision of unconstitutionality (affirmative)

[1] Article 21(1) of the Constitution of the Republic of Korea; Articles 10, 23 subparag. 1, and 3 of the Assembly and Demonstration Act; Article 47(2) (see current Article 47(2) and (3) of the former Constitutional Court Act (Amended by Act No. 12597, May 20, 2014) / [2] Article 21(1) of the Constitution of the Republic of Korea; Articles 10 and 23 subparag. 3 of the Assembly and Demonstration Act; Article 47(2) of the former Constitutional Court Act (Amended by Act No. 12597, May 20, 2014) (see current Article 47(2) and (3))

[1] Supreme Court en banc Decision 2008Do7562 Decided June 23, 201 (Gong2011Ha, 1487) Supreme Court en banc Decision 2008Do10960 Decided August 25, 201 (Gong2011Ha, 1967) en banc Decision 2008Hun-Ga25 Decided September 24, 2009 (Hun-Ga156, 1633) / [2] Supreme Court Decision 2008Do4260 Decided July 10, 2014 (Gong201Do1602 Decided July 10, 2014) (Hun-Ga, 1622), Constitutional Court en banc Decision 2011Do1602 Decided March 27, 2014, Constitutional Court en banc Decision 2015Hun-Ga2135 Decided March 27, 2014)

Defendant 1 and five others

Defendants

Attorney Lee private-il

Seoul Western District Court Decision 2008No1448 Decided June 12, 2009

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

1. The decision shall be made ex officio;

(1) The lower court found the Defendant guilty of violating each Act by participating in night outdoor assembly or demonstration, which is the ancillary charge of the instant case, by applying the main text of Article 23 subparag. 3 and Article 10 (Article 10 of the Assembly and Demonstration Act (Article 23 subparag. 3 and Article 10 of the same Act, amended by Act No. 8424, May 11, 2007; hereinafter “the Act”).

(2) However, following the pronouncement of the lower judgment, the Constitutional Court rendered a ruling of inconsistency with the Constitution to the effect that “an outdoor assembly” in Article 10 of the Assembly and Demonstration Act and Article 23 subparag. 1 of the same Act are inconsistent with the Constitution. The above provisions continue to apply until the legislators subsequently amended on June 30, 2010 (see Constitutional Court Order 2008HunGa25, Sept. 24, 2009). The National Assembly did not revise 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 same Act provides that the part of the outdoor assembly under Article 10 subparag. 1 of the same Act, the core point of the above ruling of inconsistency with the Constitution, and Article 23 subparag. 1 of the same Act, which is the mere participant (Article 10 subparag. 1) and Article 28 subparag. 1 of the same Act, which is subject to the unconstitutionality ruling as to the above part 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 shall retroactively lose its validity until the amendment deadline prescribed by the above decision of inconsistency with the Constitution is made (see Supreme Court en banc Decision 2008Do7562, Jun. 23, 2011). In a case where the Act or the provisions of the Act retroactively become null and void due to the decision of unconstitutionality, the defendant's case prosecuted by applying the above provisions constitutes a crime not committed (see Supreme Court Decision 2004Do9037, Apr. 15, 2005). As to the participation in the night outdoor assembly instituted by applying those provisions, the acquittal shall be pronounced pursuant to the former part of Article 325 of the Criminal Procedure Act.

(3) After the pronouncement of the lower judgment, the Constitutional Court rendered a decision that “the part on “ Demonstration” in the main sentence of Article 10 of the Assembly and Demonstration Act and Article 23 subparag. 3 of the same Act pertaining to “ Demonstration” shall be in violation of the Constitution, which applies to each “ Demonstration from sunset to 24 days before the same day” (see Constitutional Court Order 2010HunGa2, 2012HunGa13, March 27, 2014).

Notwithstanding the form of expression in the text, the above decision of the Constitutional Court shall be deemed to be a partial unconstitutional intent of Article 47 of the Constitutional Court Act that "from the truth-finding to the 24th day of the same day" is in violation of the Constitution, and thus, it shall have the effect as a decision of unconstitutionality under Article 47 of the Constitutional Court Act.

Therefore, the part concerning the “ Demonstration” under the provisions of the Assembly and Demonstration Act as seen above loses its validity retroactively pursuant to the proviso of Article 47(2) of the Constitutional Court Act. As such, among the ancillary facts charged in the instant case, the phrase “the part concerning the participation in the demonstration from sunset to 24 days before the same day” which was instituted by applying the above provisions constitutes a crime. Accordingly, the judgment of the court below should be acquitted in accordance with the former part of Article 325 of the Criminal Procedure Act.

(4) Ultimately, among the ancillary facts charged in this case which the court below found guilty according to the decision of the Constitutional Court, the part participating in an outdoor assembly from the start of July 13, 2007 to the next day, and the part participating in the demonstration from the start of July 13, 2007 to the end of 24th of the same day, should be reversed as it constitutes a crime. Furthermore, the part participating in the demonstration after July 14, 2007, which is the remainder of the ancillary facts charged, shall be reversed in relation to the above reversed part as well as the crime, and further, it shall be possible to find the defendants guilty by examining whether the defendants participated in the demonstration, which is not an outdoor assembly, after the above 0th of July 14, 207.

2. Therefore, the part of the judgment of the court below concerning the preliminary facts charged cannot be reversed, and the part concerning the primary facts charged in relation to the same body should also be reversed (see Supreme Court Decision 2010Do14734, Mar. 15, 2012). Thus, without examining the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below 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 Ko Young-han (Presiding Justice)