Whether the decision of the Constitutional Court on the main sentence of Article 10 and Article 20 subparag. 3 of the former Assembly and Demonstration Act, which is the prohibition and punishment provision of "ex officio outdoor assembly or demonstration", has the effect of the decision of unconstitutionality (affirmative)

Article 21(1) of the Constitution of the Republic of Korea; Articles 10 and 20 subparag. 3 (see current Article 23 subparag. 3) of the former Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007); Article 47(2) (see current Article 47(2) and (3) of the former Constitutional Court Act (Amended by Act No. 12597, May 20, 201); Article 47(3) of the Constitutional Court Act

Supreme Court en banc Decision 2011Do1602 Decided July 10, 2014 (Gong2014Ha, 1622) en banc Decision 201Hun-Ga29 Decided April 24, 2014 (Hun-Gong211, 714)

Defendant 1 and one other

Defendants and Prosecutor

Attorneys Kwon Du-con et al.

Seoul Central District Court Decision 2009No1021 Decided August 13, 2009

Of the lower judgment, each part of the conviction against Defendant 1 as to the violation of the Road Traffic Act and the violation of the Assembly and Demonstration Act due to the participation in night outdoor assembly and demonstration is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. The remainder of Defendant 1 and the appeal by Defendant 2 and the prosecutor are dismissed.

1. Judgment on Defendant 1’s grounds of appeal

The court below acknowledged, based on the adopted evidence, that Defendant 1 was the co-execution chairperson of the Jongno-gu Community Welfare Service Act for the full amendment of the Social Welfare Services Act as a result of the non-gravation of the ○○ Foundation, and decided in advance at the internal conference of the Joint Pool Group around August 8, 2006 to hold a demonstration of the social welfare and the occupation of the office of Jongno-gu Office. Even if Defendant 1 was present at the meeting on August 11, 2006 and went away from the site before the commencement of the occupancy demonstration of the above office, the court below determined that Defendant 1 cannot be exempted from the criminal liability as a co-principal for his act of entering the above special structure, unless Defendant 2 and Nonindicted 1 et al. actively refrain from the act of entering the Jongno-gu Social Welfare Service and the office and the first floor.

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no violation of the rules of evidence or misapprehension of the legal principles as to co-principal, as otherwise alleged in the grounds of appeal, which affected the conclusion of the judgment.

2. Judgment on Defendant 2’s grounds of appeal

The court below found Defendant 2 guilty of this part of the facts charged against Defendant 2, on the basis of the facts stated in its reasoning based on the adopted evidence, on the ground that Defendant 2’s act interfered with the legitimate execution of duties by the police officer Nonindicted 2 on the left-hand side of the police station, and in light of Defendant 2’s aforementioned act’s circumstance, purpose, means, and method, and result, it cannot be deemed as an act which is reasonable to be acceptable by social norms.

In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error of law by violating the rules of evidence and misunderstanding the legal principles as to the legality of execution of duties, as otherwise alleged in the grounds of appeal.

3. Judgment on the grounds of appeal by the prosecutor

Based on its stated reasoning, the lower court determined that Defendant 1’s act of movement, such as the facts charged, did not constitute “an act of laying, sitting or standing on, or standing on, a vehicle in a manner likely to interfere with traffic” prohibited by Article 68(3)2 of the Road Traffic Act.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s above fact-finding and determination are justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding Article 68(3)2 of the Road Traffic Act, or by exceeding the bounds of

4. Ex officio determination

A. In applying Article 20 Subparag. 3 and the main sentence of Article 10 of the former Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007; hereinafter “former Assembly and Demonstration Act”), the lower court found Defendant 1 guilty of violating the former Assembly and Demonstration Act due to Defendant 1’s participation in night outdoor assembly and demonstration among the facts charged in the instant case. However, the lower court rendered a decision on April 24, 201 and Article 20 Subparag. 3 of the former Assembly and Demonstration Act that “the part on “Article 10” in Article 10 and Article 20 Subparag. 3 of the former Assembly and Demonstration Act applied to each outdoor assembly or demonstration from sunset to 24 days from the same day.”

B. Although the above decision of the Constitutional Court is in the form of a decision of unconstitutionality limited to external form, its substance is that an outdoor assembly or demonstration shall not be held from sunset to 24 days on the same day under Article 10 of the former Assembly and Demonstration Act and that the above part among the "main sentence of Article 10" under Article 20 of the same Act, which is the penal provision about the above provision, shall be deemed to be in violation of the Constitution. Thus, the above decision of the Constitutional Court is effective as a decision of unconstitutionality under Article 47 of the Constitutional Court Act within the above scope.

C. Thus, the part of the above part of the " outdoor assembly or demonstration" under Article 47 (2) of the former Assembly and Demonstration Act as to "from sunset time to 24 days of the same day" is retroactively invalidated pursuant to the proviso of Article 47 (2) of the Constitutional Court Act. Thus, by applying the above part of the indictment as to Defendant 1, who was indicted for participating in an assembly or demonstration after sunset time from November 17, 2006 to 21:55 after sunset time, this part of the indictment as to the defendant 1, who was prosecuted for participating in the assembly or demonstration after sunset time, constitutes a case where the crime is not committed (see Supreme Court Decision 2004Do9037, Apr. 15, 2005). Therefore, the judgment below convicting this part of the charge was rejected as a result.

5. Scope of reversal

As above, as long as the part of violation of the former Act due to Defendant 1’s participation in an outdoor assembly or demonstration prohibition time is reversed, the part of each crime of violation of the Road Traffic Act, which was sentenced to a fine together with the substantive concurrent relation, shall also be reversed.

6. Conclusion

Therefore, of the judgment of the court below, the conviction of Defendant 1 as to the violation of each Road Traffic Act and the violation of the former Act by participating in the outdoor assembly and demonstration prohibition hours is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by Defendant 1 and the appeal by Defendant 2 and the prosecutor are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)