In a case where only Article 24 subparag. 5 and Article 20(2) of the same Act, which are applicable provisions to the charges of violation of the Act on the Violation of the Act on the Assembly and Demonstration, are stipulated as applicable provisions to the charges of violation of the Act on the Assembly and Demonstration, the case holding that a prosecution procedure is null and void because the provision that forms the basis for

In a case where only Article 24 subparag. 5 and Article 20(2) of the same Act, which are applicable provisions to the facts charged of violation of the Act on the Assembly and Demonstration, are stated as applicable provisions to the charges of violation of the Act on the Assembly and Demonstration, the case holding that the indictment procedure is null and void because the provision, which forms the basis of the dispersion order, and the omission of the facts related thereto, give substantial disadvantage to the defendant's exercise of his right of defense, and even if the prosecutor presented the basis provision for the dispersion order after the closing

Articles 16(4)3, 20(1)5 and (2), and 24 subparag. 5 of the Assembly and Demonstration Act; Articles 254(3)4 and 298 of the Criminal Procedure Act

[Plaintiff-Appellant] Plaintiff 2005Do9743 delivered on April 14, 2006 (Gong2006Sang, 842)

Defendant

Prosecutor

Seoul Central District Court Decision 2008No3262 Decided December 18, 2008

The non-guilty portion of the judgment below shall be reversed, and that part of the case shall be remanded to the Panel Division of the Seoul Central District Court.

Before determining the grounds of appeal, we examine it ex officio.

Article 254(4) of the Criminal Procedure Act provides that “The purpose of the indictment is to clarify the legal assessment of the facts charged to determine the scope of the public prosecution and to guarantee the defendant’s right of defense (see Supreme Court Decision 2005Do9743, Apr. 14, 2006).” Meanwhile, the facts charged in the indictment are meaningful to limit the subject of adjudication by the court and to specify the scope of the defendant’s defense and to guarantee the defendant’s right of defense. Therefore, Article 254(4) of the Criminal Procedure Act provides that the date, place, and method of the crime must be specified in the indictment.

In this case, with respect to the violation of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”), the prosecutor, from around 10:00 on April 8, 2008 to around 11:00, the defendant, from around 00, 200, ○○○○○○○, 26 members of the removal countermeasure committee around the entrance and exit of the reconstruction construction site, opened at the same time and made it impossible for all members to pass through the building site by holding an assembly, such as making a speech and going together with the members, making it impossible for them to pass through the building site, thereby interfering with the reconstruction affairs of the victim association and holding an assembly. Accordingly, the director of the Jung-gu Police Station Security Division entrusted with the authority to dissolve illegal assembly by the head of the Jung-gu Police Station, requested voluntary dispersion, and then the order of dispersion was issued at around 11:0, around 11:05, around 11:10, and around 11:103 times, the defendant did not prosecute without delay, and Article 25(2) of the Assembly and Demonstration Act.

However, Article 24 of the Assembly and Demonstration Act is a penal provision, and Article 24 subparagraph 5 provides that a person who violates Article 20(2) of the Assembly and Demonstration Act shall be punished by a certain punishment. Article 20(2) of the Assembly and Demonstration Act provides that “When an assembly or demonstration has received a dispersion order pursuant to Article 20(1) of the Assembly and Demonstration Act, all participants shall be dissolved without delay.” Therefore, in order to deliberate and decide on the violation of the Assembly and Demonstration Act, it is difficult to look at what “a dispersion order pursuant to Article 20(1) of the Assembly and Demonstration Act.”

Article 20 (1) of the Assembly and Demonstration Act is defined as follows:

The head of the competent police authority shall request voluntary dispersion of an assembly or demonstration falling under any of the following subparagraphs within a reasonable time, and may order dispersion (dissolvement) if the order is not complied with:

1. Any assembly or demonstration in violation of Article 5 (1), the main sentence of Article 10, or Article 11;

2. Any assembly or demonstration which has not been reported under Article 6 (1), or which is prohibited under Article 8 or 12;

3. An assembly or demonstration which clearly causes direct danger to the maintenance of order, such as traffic flow, in violation of the restrictions under Article 8 (3), the proviso to Article 10, or the conditions under Article 12;

4. Any assembly or demonstration, the conclusion of which has been declared under Article 16 (3).

5. "Assembly or demonstration that makes it impracticable to maintain order by an act falling under any subparagraph of Article 16 (4)."

In addition, Article 16 (4) cited in Article 20 (1) 5 of the Assembly and Demonstration Act is defined as follows.

The organizer of an assembly or demonstration shall not engage in any of the following acts:

1. Carrying or using, or allowing any third person to carry or use, firearms, explosives, swords, iron bars, bar bars, stones, or other tools which may cause harm to the life or body of any other person;

2. Disturbing order by means of violence, intimidation, destruction, fire prevention, etc.;

3. An act clearly deviating from the scope of the reported purpose, date, time, place, method, etc.

As can be seen, the attitude of the assembly or demonstration that can be ordered to dissolve under Article 20(1) of the Assembly and Demonstration Act is very diverse and diverse. However, it cannot be easily known that the above part of the facts charged alone constitutes one of the various forms of assemblies determined by Article 20(1) that the dispersion order may be issued under Article 20(1) of the Assembly and Demonstration Act, and thus received a dispersion order from the police. In addition, even if the facts charged in this case are viewed as one of the daily provisions listed in Article 20(1) of the Assembly and Demonstration Act, it cannot be said that such uncertainty may not be significantly reduced. As such, the mere provision of Article 20(2) of the Assembly and Demonstration Act as the applicable provisions of the indictment regarding the violation of the Assembly and Demonstration Act does not provide a proper legal assessment as to the facts charged, and thus, the prosecution procedure of this case is invalid because it does not confirm the scope of the prosecution and gives substantial disadvantage to the defendant's exercise of his right to defense. Although the prosecutor's amendment order after the closure of the prosecution, it cannot be justified.

Even if the above provisions of the Assembly and Demonstration Act as presented by the prosecutor were to be added to the applicable provisions of the Assembly and Demonstration Act, the facts charged in this case are specific matters falling under Article 16 (4) 3 of the Assembly and Demonstration Act as seen earlier, i.e., the purpose, date, time, place, method of the report concerning the assembly in this case, and the scope of the reported purpose, date, time, place, method, etc. in any respect, and in any point, the assembly in this case does not entirely state whether the reported purpose, date, time, place, method, etc. clearly deviates, so it cannot

The court below erred by misapprehending the legal principles as to the prosecution procedure and thereby adversely affecting the conclusion of the judgment, which found the Defendant not guilty of the facts charged as to the violation of the Assembly and Demonstration Act.

Therefore, among the judgment below, the non-guilty portion as to the violation of the Assembly and Demonstration Act is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)