(영문) 대법원 2019.1.10.선고 2017도15461 판결

1. In light of Article 6(1) of the Assembly and Demonstration Act and the legislative purport thereof, where an assembly or demonstration is conducted on the road after completing lawful reports under the Assembly and Demonstration Act, the traffic of the road may be restricted to a certain extent. Therefore, in a case where the assembly or demonstration conducted within the reported scope or conducted differently from the reported contents, barring special circumstances, it does not constitute a general traffic obstruction under Article 185 of the Criminal Act even if the assembly or demonstration was obstructed thereby, barring special circumstances. However, in a case where the assembly or demonstration considerably deviates from the original reported scope, or makes it impossible or considerably difficult to pass by interfering with traffic due to serious violation of the conditions under Article 12 of the Assembly and Demonstration Act (see, e.g., Supreme Court Decision 2006Do755, Nov. 13, 2008).

However, since the scope of the initial report is considerably deviating from the scope of the report, or the participation in an assembly and demonstration that make it impossible or considerably difficult to pass by interfering with road traffic by seriously violating the conditions under Article 12 of the Assembly and Demonstration Act, all such participants do not necessarily constitute a crime of interference with general traffic, as a matter of course, by all the participants. In fact, if the participants engaged in a direct act that causes interference with traffic by taking part in a significant deviation from the reported scope or a serious violation of the said conditions, or if not, the participants may be held liable for the crime as a co-principal in light of the developments leading up to the participation or the degree of involvement by the participants (see, e.g., Supreme Court Decision 2016Do4921, Nov. 10, 2016).

2. A. The summary of the facts charged in the instant case is that the Defendant, the secretary general of the National Assembly regional office of the member of the National Assembly, participated in the competitions held in MM Sejong, etc. as of Seoul, M., and the Defendant conspired with the participants in collusion by occupying the 16:46 Sejong Jongno-gu, Seoul along with the demonstration team, the end of the 16:46 Sejong Metropolitan City along with the demonstration team and driving along with the movement notified in advance.

B. On the basis of the circumstances stated in its reasoning, the court below affirmed the judgment of the first instance which recognized the Defendant’s establishment of a crime of interference with general traffic, on the ground that, although recognizing that the Defendant’s act of running in the instant case deviates from the scope of the prior report and, at least, the Defendant was an act of causing considerable difficulty in vehicle traffic, the Defendant participated in the progress leading to the combination of other assemblies and happy participants, in order, and impliedly, with the other participants

3. A. However, examining the following facts and circumstances revealed through the reasoning of the lower judgment and the record in light of the legal principles as seen earlier, the Defendant cannot be deemed to have committed a direct act that may cause traffic obstruction by significantly deviating from the reported scope or seriously violating the conditions, or to be held liable as a co-principal of general traffic obstruction. Therefore, the lower court’s aforementioned determination is difficult to accept.

(1) On November 12, 2015, the Seoul Local Police Agency reported that the Seoul Local Police Agency’s 16:00 to 20:00 of the date MM 16:00 to 20:00 of the Seoul Local Police Agency (“Seoul”) will take advantage of the entire delivery, but the Seoul Local Police Agency notified that the Seoul Local Police Agency would take advantage of the entire delivery.

(2) However, there is no evidence to deem that the Defendant continued the demonstration with prior knowledge of the scope and conditions of the report of such assembly and demonstration or recognizing its illegality.

(3) On the facts charged that the Defendant occupied a road, around 16:46, the police had already been in a situation in which the police already installed a garage and obstructed and controlled the daily traffic.

(4) The Defendant appears to have participated simply in the instant assembly and demonstration, and there is no circumstance to deem that there was a direct act that may cause traffic obstruction by performing a leading role in the assembly and demonstration, or that there was a functional control over the act through an essential contribution to it.

B. Nevertheless, the lower court erred by exceeding the bounds of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine of general traffic obstruction and joint principal offenders, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.