(영문) 대법원 2019.1.10. 선고 2017도8056 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 as follows: (a) the Defendant, a member of the instant case, participated in the “C” assembly held on December 28, 2013 and engaged in the assembly with the demonstration team participating in the assembly; and (b) in collusion with the said demonstration team by occupying the front line of the E-ray located in Jongno-gu Seoul Metropolitan Government D from 18:47 to 18:56 without permission, thereby interfering with the traffic of the land.

B. On the basis of the circumstances indicated in its reasoning, the lower court, based on its reasoning, took part in the process of recognizing the fact that the Defendant participated in the assembly of this case in order to make the passage of the vehicle impossible or considerably difficult by participating in the demonstration in which the Defendant occupies the roadway, and, insofar as such functional contribution is recognized, may be deemed as a co-principal, insofar as the Defendant is deemed to have a co-principal. In so doing, the lower court affirmed the first instance judgment convicting the Defendant.

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 or to be held liable as a co-principal of general traffic obstruction by significantly deviating from the reported scope or seriously violating the conditions. Therefore, the lower court’s aforementioned determination is difficult to accept.

(1) On December 28, 2013, the instant assembly was carried out in the Seoul Square as of December 28, 2013, but at around 15:35, the demonstration group 200, the police declared the closure of the assembly at around 16:22, and ordered the voluntary dispersion and five times a dispersion order.

(2) The instant assembly was changed to a dub demonstration that illegally occupies the eight-lane lane from 17:2 to 19:48 of the Seoul Jung-gu, and led to a complete interference with the traffic of one-time vehicles for more than one hour from 17:2 to 19:48.

(3) The Defendant, as a member of B for the rights and interests of non-regular part-time workers, was in the N located in E and east area located in the south of the F along with many participants before and after the arrival of the instant assembly at the place where the meeting was held on a short time due to the lack of time, along with L, a member B, who was a member of the same B.

(4) At the time when the defendant was located near F, it seems that the police had already been in the situation of blocking and controlling the traffic of the part of the police. Therefore, it is difficult to deem that the defendant's participation in the assembly has caused more traffic obstruction or contributed to the continuation of traffic obstruction.

(5) The Defendant appears to have simply participated in the instant assembly and demonstration as a university student who is a general member of B, and there is insufficient evidence to deem that the Defendant had committed a direct act that may cause interference with traffic by performing a leading role in the assembly and demonstration, or that he performed a functional control through an essential contribution thereto.

(6) After the completion of the assembly, the instant assembly, which was held in the Seoul plaza, was changed to a meeting beyond the scope of the report, by entering the direction of the luminous language. However, there was no evidence to deem that the Defendant, a general member of B, was aware of the scope of the report or the conditions of the instant assembly. There is also no reason to deem that there was a significant deviation from the reported scope or a serious violation of the conditions.

B. Nevertheless, the lower court erred by exceeding the bounds of the principle 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.