Whether the Constitutional Court’s decision of inconsistency with the Constitution on the provisions of the Assembly and Demonstration Act that prohibit an outdoor assembly or demonstration at a place within 100 meters from the boundary of the National Assembly party constitutes a decision of unconstitutionality as to the provisions of the Punishment Act (affirmative)

Article 11 subparag. 1, Article 23 subparag. 1, Article 47(3) of the Constitutional Court Act, Article 325 of the Criminal Procedure Act

Supreme Court en banc Decision 2008Do7562 Decided June 23, 2011 (Gong2011Ha, 174), Supreme Court Decision 2017Do8610 Decided May 28, 2020 (Gong2020Ha, 1288), Constitutional Court en banc Decision 2003Hun-Ga1, 2004Hun-Ga4 Decided May 27, 2004 (Hun-Ba93, 602), Constitutional Court en banc Decision 2013Hun-Ba322, 2016Hun-Ba354, 2017Hun-Ba3638, 381, 208 (Hun-Ba, 1288), Constitutional Court en banc Decision 2003Hun-Ga1, 2004Hun-Ga4 Decided May 31, 2018 (Hun-Ba93, 602), en banc Decision 2013Hun-Ba320164, 20178381,484

Defendant

Defendant and Prosecutor

Law Firm Inn, Attorneys Lee Jong-hee et al.

Seoul Southern District Court Decision 2017No787 decided June 5, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and duly admitted evidence, it is justifiable for the lower court to maintain the first instance judgment that found the Defendant guilty of interference with general traffic among the facts charged in the instant case on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

2. As to the Prosecutor’s Grounds of Appeal

A. As to the violation of the Assembly and Demonstration Act on March 31, 2015

The lower court reversed the first instance judgment convicting the Defendant of violation of the Assembly and Demonstration Act on March 31, 2015 among the facts charged in the instant case on the grounds that there was no proof of crime, and sentenced the Defendant not guilty of the said part. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical

B. As to the violation of the Assembly and Demonstration Act in May 2, 2015 and May 6, 2015

(1) The Constitutional Court rendered a ruling of inconsistency with the Constitution to the effect that “The part of Article 11 subparag. 1 of the Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007; hereinafter “the Assembly and Demonstration Act”) and Article 11 subparag. 1 of the Assembly and Demonstration Act with respect to “the Assembly and Demonstration and” in Article 23 shall not comply with the Constitution,” and “the above provision of the Act shall continue to apply until it is amended by December 31, 2019,” and “the above provision of the Act shall continue to apply until it is amended by December 31, 2019.” [The Constitutional Court Decisions 2013Hun-Ba322, 2013Hun-Ba354, 2016Hun-Ba354, 2017Hun-Ba360, 398, 2018Hun-Ga3, 471, 2018, 3, 9(m).

(2) Although the Constitutional Court’s decision of inconsistency with the Constitution and the Constitutional Court Act is a modified form that is not stipulated in the Constitution, it constitutes a decision of unconstitutionality as to legal provisions (see, e.g., Supreme Court Decision 2004Do7111, Jan. 15, 2009; Constitutional Court en banc Decision 2003HunGa1, May 27, 2004; Constitutional Court en banc Decision 2004HunGa1, May 27, 2004). Article 23 Subparag. 1 of the Assembly and Demonstration Act provides that Article 11 Subparag. 1 of the Assembly and Demonstration Act shall be deemed as a requirement to violate Article 11 Subparag. 1 of the Assembly and Demonstration Act. Accordingly, Article 11 Subparag. 1 of the Assembly and Demonstration Act becomes a legal provision on punishment in combination with Article 23 Subparag. 1 of the Assembly and Demonstration Act. Accordingly, where the provision on penal provisions becomes retroactively null and void, the court shall render a decision of unconstitutionality as to the pertinent case under Article 20251.

(3) Of the facts charged in this case, the lower court reversed the first instance judgment convicting the Defendant of this part of the facts charged on the ground that the legal provision of this case, which served as the ground for the prosecution, has retroactively lost its validity in accordance with the decision of inconsistency with the Constitution, as to the part that the Defendant participated in an assembly held at a place within 100 meters from the boundary of the National Assembly headquarters, which is the place where assembly is prohibited, (the violation of the Assembly and Demonstration Act, May 2, 2015) and acquitted the Defendant in accordance with the former part of Article 325 of the Criminal Procedure Act.

(4) Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the validity of the Constitutional Court’s ruling of inconsistency with trust.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)