Defendant 1 and three others

Defendant 1 and Prosecutor

Lee Sung-hoon

Gwangju District Court Decision 2009Dadan898 Decided May 28, 2009

All appeals are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts and misapprehension of legal principles

First, regarding the defendant's non-compliance with the withdrawal from the hospital among the facts charged, since the location where the defendant was demanded by the hospital to leave (hereinafter "the location of the demonstration in this case") is not installed, the boundary with the outside of the hospital is unclear, and there is no access control and free use by the outside person, it does not constitute a summary of the hospital.

Second, regarding the violation of the Assembly and Demonstration Act among the facts charged against the above defendant, the place of assembly reported by the defendant (hereinafter “the place of assembly report of this case”) and the place of demonstration of this case are merely ten meters far away, and thus, it is difficult to view that there is a qualitative difference between the above two places in terms of affecting the business of ○ University Hospital (hereinafter “ Hospital”) and the stability of the patients. Furthermore, the demonstration at the reported place of demonstration of this case is likely to obstruct the passage of pedestrians visiting the hospital. Therefore, the Defendant’s act of demonstration at the place of demonstration of this case does not constitute an act clearly deviating from the place of report of this case.

Nevertheless, since the court below found the defendant guilty all of the facts charged in this case, the court below erred by misapprehending the legal principles, which affected the conclusion of the judgment.

(2) Unreasonable sentencing

Although it is recognized that the defendant violated the Act on the Crimes of Refusal to Leave and Assembly and Demonstration, the sentence of imprisonment (six months of imprisonment and two years of suspended execution) imposed by the court below is too unreasonable.

B. Prosecutor (Defendant 2, 3, and 4)

The sentence sentenced by the court below to Defendant 2, 3, and 4 (the suspended sentence of imprisonment for each three months) is too unfluent and unfair.

2. Determination

A. Determination on Defendant 1’s grounds of appeal

(1) Determination as to the refusal to leave

In order to be a summary of a structure, it is necessary to clearly indicate that the manager, as surrounding land adjacent to the structure, installed a door and fence on the boundary with the outside and provided for the use of the structure. However, considering the trend that the manager removed a fence installed in the nearest school, hospital, public institution, etc., and replaced the installation of a fence by the installation of a fireproof, planting trees, etc., it does not change even if the door and fence were not installed even if it clearly revealed that the surrounding land adjacent to the building was provided for the use of a structure enclosed by a building, fire group, trees, etc., and that it was clearly revealed that the building was provided for the use of a fence. In general, even if the place is open, the manager may limit the entry and exit of the building as necessary, and thus, the manager’s failure to leave the building despite the demand for the removal of the manager is detrimental to the peace of the building, and thus constitutes an offense of refusing to leave.

Meanwhile, according to the evidence duly adopted and examined by the court below and the court below, although there is no door or fence between the place of the demonstration and the hospital, and there is a manager, the place of the demonstration in this case does not restrict the general public's access to the place of the demonstration in this case. However, if there are trees planted in the hospital and the hospital, the place of the demonstration in this case serves as a boundary with the outside of the hospital. The demonstration in this case is used as a passage to the hospital building as a front or a side of each hospital's building. In light of this, it is clearly revealed that the place of the demonstration in this case was offered for the use of the hospital building.

If we look at the facts above in light of the above legal relations, it is reasonable to view the place of the demonstration of this case as the above summary of the hospital building. Therefore, there is no error of law that affected the conclusion of the judgment due to misunderstanding of facts or misunderstanding of legal principles in the judgment of the court below which found the guilty of this part

(2) Judgment on the violation of the Assembly and Demonstration Act

In light of the purport of the report system under the Assembly and Demonstration Act, whether an outdoor assembly or demonstration actually held constitutes “any act significantly deviating from the scope of the reported purpose, date, time, place, method, etc.” as prescribed by Article 16(4)3 of the same Act shall be determined by whether the assembly or demonstration considerably deviates from the scope expected by the report, and thus making it extremely difficult to achieve the purpose of the report system. In addition, in determining it, the freedom of assembly or demonstration is a citizen’s fundamental right guaranteed by the Constitution; the organizer of the assembly, etc. is not only a citizen’s basic right guaranteed by the Constitution; the organizer of the assembly, etc. may not only expect the detailed matters of the method of the assembly or demonstration in advance, but also make it difficult to report it without fail to report it in full, in consideration of the fact that there is an inevitable change in the method in the process of the assembly or demonstration; and after examining the details of the report and its actual situation specifically and individually, it shall be determined by comprehensively evaluating it (see Supreme Court Decision 208Do3974, Oct. 23, 2008).

Meanwhile, according to the evidence duly adopted and examined by the court below and the court below, ① the reported place of this case is located in the entrance, etc., and it plays the same role as the entrance or side of the hospital's building site. On the other hand, the reported place of this case is located inside the hospital's site and plays the same role as the hospital's building's front or side. ② The reported place is not easy to see the defendants' demonstration habits in each hospital's building located within the hospital's site. On the other hand, the place of this case's demonstration is located around the hospital's site, and it is difficult to see that the hospital's building or the defendants' eating practice can be seen in the hospital's building. ③ The first floor of the hospital's building is no longer than the hospital's first floor, and the reported place is no more than 20-25-25-3 meters away from the hospital's building site and the reported place is no more than 3-5-4 meters away from the hospital's entrance and the place of this case's demonstration.

In light of the above legal relationship, it seems that there is a big qualitative difference between the two even if the distance between the reported place and the place of the demonstration of this case is not far away from the injury. Thus, the defendant's act of demonstration at the place of the demonstration of this case constitutes an act of remarkably deviating from the scope of the reported place and method, etc. Therefore, there is no error of law that affected the conclusion of the judgment due to misunderstanding of facts or misunderstanding of legal principles regarding the facts charged. Accordingly, the above defendant's assertion

(3) Judgment on the assertion of unreasonable sentencing

In light of various factors, such as the Defendant’s age, character and conduct, and environment, the demonstration was conducted in a peaceful way, and the Defendant agreed with the hospital, the victim. However, the Defendant’s above assertion is not acceptable, in light of the following: (a) even though the Defendant was subject to the suspension of the execution of imprisonment with prison labor for the same kind of crime, the Defendant was committed in the instant crime; and (b) the Defendant, who did not have a certain place of work, could be punished more severe punishment; and (c) the Defendant’s fine may be imposed more severe punishment; and (d) the lower court’s sentence imposed on the Defendant is not unreasonable.

B. Determination on the grounds for appeal by the prosecutor

In light of the following factors: (a) the Defendants 2, 3, and 4 did not comply with the legitimate request for the withdrawal from the hospital and conducted a demonstration; (b) the demonstration was conducted in a peaceful manner; (c) the Defendants agreed to the victim’s hospital and smoothly; and (d) the Defendants did not have any other means of punishment, including the Defendants’ age, character, conduct, and environment, the sentence imposed by the lower court to the said Defendants is not unreasonable. Accordingly, the Prosecutor’s aforementioned assertion is rejected.

3. Conclusion

Therefore, since all appeals by Defendant 1 and the prosecutor are without merit, they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jin-su (Presiding Judge)