[1] Whether an outdoor assembly or demonstration reported in advance may be dissolved or stored on the ground that the reported matters are incomplete or exceed the reported scope (negative with qualification)

[2] The case holding that it is subject to report in advance that the inventor's intent to collectively wear clothes in the form of a criminal clothes and take clothes in the form of a spawn and spawn with his body on board

[3] The case holding that the State's liability for damages is not acknowledged in accordance with the principle of fairness, considering the fact that it is unlawful for the police to immediately stop the demonstration on the ground that the demonstration was conducted in a manner that was not reported by the inventor, but in light of the nature of the demonstration to be promptly decided on its permission and the fact that it is difficult to determine whether the police officer's negligence which prevented the demonstration could be immediately avoided, while the police officer's negligence appears to be extremely small, but did not report the demonstration to the

[1] Under the former Assembly and Demonstration Act (amended by Act No. 5985 of May 24, 1999), an outdoor assembly or demonstration may not be deemed to have failed to make a report as long as its contents are identical to the reported matter, even if the outdoor assembly or demonstration was defective in the reported matter or deviates from the reported scope. Thus, the head of the competent police authority may not immediately dissolve or block the relevant outdoor assembly or demonstration solely on the ground that the report was incomplete or deviates from the reported scope. In light of the specific circumstances at the time of the outdoor assembly or demonstration, only if the outdoor assembly or demonstration’s failure to report or deviation from the reported scope causes a direct danger to others’ legal interests or other public safety and order, measures appropriate for preventing and removing such danger may be taken, but such measures shall be limited to the minimum necessary extent permitted by statutes.

[2] In light of the purpose of the demonstration to inform citizens of the receipt of conscience, the case holding that it is subject to prior report on the matters related to the method of demonstration as stipulated in Article 6 (1) of the Assembly and Demonstration Act and Article 2 of the Enforcement Decree of the same Act, where a inventor intends to collectively wear clothes in the form of a crime and take spawn and swn his body with his body

[3] The case holding that it is unlawful for the police to immediately restrain a demonstration on the ground that the persons who conducted the demonstration collectively wear clothes in the unreported form of crime and carried out the work with their body. However, since it is an excessive restriction on the freedom of demonstration, many people are involved and people or facilities surrounding the demonstration area may have a significant impact on the persons or facilities surrounding the demonstration area, the determination as to the legitimacy of the demonstration is not based on the nature of the police officers' prior deliberation and determination as to whether it should be permitted at the site of the demonstration, but it is a matter that should be promptly decided on whether it is permitted at the site of the demonstration, and the measures should be taken accordingly promptly. Thus, even if it is not explicitly stated that the facts were not observed as the elements for dissolution of the demonstration under the former Assembly and Demonstration Act (amended by Act No. 5985 of May 24, 199), it is reasonable to determine whether it is possible to dissolve the demonstration immediately as in such case, or if it is not found that there was a big reason to prevent a police official from spreading the report or other form of public order.

[1] Article 21(1) and (2) of the Constitution of the Republic of Korea; Articles 1 and 6 of the Assembly and Demonstration Act; Article 18(1) of the former Assembly and Demonstration Act (amended by Act No. 5985 of May 24, 199) / [2] Article 6 of the Assembly and Demonstration Act; Article 2 of the Enforcement Decree of the Assembly and Demonstration Act / [3] Article 2 of the State Compensation Act; Article 18(1) of the former Assembly and Demonstration Act (amended by Act No. 5985 of May 24, 199)

Plaintiff 1 and fourteen others (Law Office, Law Office, Attorneys Kim Chang-joon et al., Counsel for the plaintiff-appellant)

Republic of Korea and two others

Seoul District Court Decision 97Na43641 delivered on April 10, 1998

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined (if the supplemental appellate brief was not timely filed, to the extent it supplements the grounds of appeal).

1. The main sentence of Article 6(1) of the former Assembly and Demonstration Act (amended by Act No. 5985 of May 24, 199; hereinafter referred to as the "Act") provides that "any person who intends to hold an outdoor assembly or demonstration" shall carry out a report stating the purpose, date (including required hours), place, organizer (in the case of an organization, including its representative), address, name and occupation of the person responsible for the liaison, address, occupation and research system, number of organizations to participate in the assembly or demonstration scheduled to participate and method of demonstration (including progress and route thereof) in advance, and shall be submitted to the chief of the competent police station 48 hours before the outdoor assembly or demonstration is reported." Article 2 of the Enforcement Decree provides that "any person who intends to hold an outdoor assembly or demonstration" as provided in the proviso of Article 6(1) of the Act or the main sentence of Article 6(1) of the same Act provides that "the head of the competent police station shall use the same outdoor assembly or demonstration for the same purpose as that of the assembly or demonstration reported in advance."

Therefore, under the Assembly and Demonstration Act, even if an outdoor assembly or demonstration was defective in the reported matters or deviates from the reported scope, it cannot be deemed that the report has not been filed as long as its consistency with the reported matters is maintained. Thus, the head of the competent police authority may not immediately dissolve or block the relevant outdoor assembly or demonstration on the sole ground that the report was incomplete or deviates from the reported scope. In light of the specific circumstances at the time of the outdoor assembly or demonstration, only in a case where a direct danger to others’ legal interests and other public safety and order exists due to the deviation from the reported scope, measures to restrict the assembly or demonstration appropriate for preventing and removing the danger may be taken, but such measures shall be limited to the minimum necessary extent permitted by statutes.

2. The judgment of the court below

According to the reasoning of the judgment of the court below, since the council of democratic movement on August 5, 1996 adopted evidence showed that the above activities of the police officers of Seoul Central Police Station did not take measures to maintain the order of movement on the following grounds: on August 8, 1996, for the purpose of informing citizens of the acceptance of conscience; on the road; on the other hand, the police officers of the above activities were reported by the National Assembly - The central theater head office of foreign exchange bank - Eccuador - The police officers' activities for the use of the above activities for the dispersion of 150 persons among the participants of the above demonstration held at around 11:0 on the same day, 10 persons, including the plaintiffs, wear clothes in the form of clothes on which the number of crimes on their breasts was attached; on the other hand, those who did not take measures to prevent the above activities from being carried out by the police officers from being carried out under the jurisdiction of the National Police Station's order of movement on the same way as those in which they actually used on the road.

3. Judgment of the Supreme Court

A. As to the claim against Defendant Republic of Korea

Even if those demonstration including the plaintiffs collectively wear clothes in the form of clothes for which the demonstration was not reported and carried out with their body, the expression method of such demonstration is considerably related to the purpose of the demonstration reported. In light of the specific situation revealed in the record at the time of the demonstration, such as the peaceful progress, it is not deemed that the expression method of the demonstration does not directly pose a danger to public safety and order, such as collision with others. Thus, the expression method of the owner of the demonstration may not be prevented solely because there is a possibility that the expression method of the demonstration would bring about a conflict with others. Meanwhile, the demonstration in this case goes beyond the scope of the demonstration, unlike the contents of the report to take place on delivery, since it would result in a direct danger to public safety and order, such as traffic order, etc., as it goes beyond the reported direction of the demonstration, the act of the owner of the demonstration in this case would not be deemed to go beyond the boundary of the road at the time of delivery to the front of the road that was closed by the police at the time of the demonstration.

Nevertheless, the court below erred in the misapprehension of legal principles as to the demonstration, which judged that police officers' blocking the demonstration including the plaintiffs, on the grounds as stated in its reasoning.

In addition, there was no provision to dissolve the report at the time of the demonstration of this case. However, even if there was a defect in the report, it was only possible to dissolve the unreported assembly or demonstration under Article 18(3) of the Assembly and Demonstration Act at the time, and even if there was a defect in the report, it should not immediately prevent the assembly or demonstration in question, and only if there was a direct danger to the legal interests of others and other public peace and order due to the defect in the report, it should be deemed that it can be a restrictive measure to prevent or eliminate the danger. At the time of the demonstration of this case, the police officer may immediately stop the demonstration in case where the report is not interpreted as erroneous because of the error of interpretation of the relevant laws and regulations, and it should be said that there was a wrong error that prevented the demonstration of this case.

However, since the demonstration is related to many people and it can affect the people or facilities around the demonstration place, the determination whether or not to permit the demonstration, if there is a dispute with the person or facility in connection with the legitimacy of the demonstration, is not a nature that can be decided by the police officer, and it is necessary to immediately determine whether or not to permit the demonstration at the site, and take measures accordingly promptly. In such a case, even though the report is not explicitly cited the case where there is a defect in the reported matters, as in the case of the demonstration under the Assembly and Demonstration Act at the time, it is possible to immediately dissolve the demonstration as in the case of the non-report, or once the report is reported, even if it is found that the report is incomplete, it can not immediately stop the demonstration on the ground that it is not proper to take measures to prevent or eliminate the danger, and it is not appropriate to take measures to prevent or eliminate it, and even if there is no theory or precedent, it cannot be seen that the police officer's error in the report at the time of the demonstration at the time of the demonstration as a matter of law.

On the other hand, in light of the purpose of the demonstration of this case, the purpose of the demonstration of this case is to collectively wear clothes in the form of a crime, and to spawn the body with the spawn aboard is to be reported as related to the method of demonstration as stipulated in Article 6(1) of the Assembly and Demonstration Act and Article 2 of the Enforcement Decree thereof, which was enforced at the time. However, the plaintiffs were erroneous in failing to report the method of demonstration intentionally, and there were errors that were conducted as part of the roadway at the time of the demonstration of this case.

In light of the principle of fairness, it is reasonable to exempt the defendant's Republic of Korea from liability in light of various circumstances, such as the contents and degree of negligence of the plaintiffs and police officers of this case, particularly the fact that police officers' negligence seems to be extremely small, and the circumstances leading to the suspension of the demonstration of this case.

Therefore, the plaintiffs' claims against the defendant Republic of Korea cannot be accepted ultimately, and therefore, even if there were errors as seen above in the judgment of the court below, the conclusion that dismissed the plaintiffs' claims is justifiable. Therefore, this part of the grounds for appeal cannot be accepted ultimately.

B. As to the claim against the defendant 2 and the defendant 3

Where a public official causes damage to another person by a tort while performing his/her duties, the public official’s individual shall be held liable for damages caused by the tort in addition to the State’s liability for damages. However, if only the public official’s progress exists, the individual shall not be held liable for damages (see, e.g., Supreme Court en banc Decision 95Da38677, Feb. 15, 196).

The court below held that it is not illegal for police officers to stop the progress of the demonstration in this case, including the plaintiffs. However, according to the records, Defendant 2, the director of the information department of the mid-term Police Station, or Defendant 3, the director of the information department of the mid-term Police Station, was in violation of the duty to report under the Assembly and Demonstration Act, and thus can be avoided only for the reason. Thus, as seen above, the above Defendants' interpretation of such Acts and subordinate statutes cannot be deemed to have been at fault, but it cannot be said that there was intention or gross negligence, and the conclusion of the court below that dismissed the plaintiffs' claim for damages against Defendant 2 and Defendant 3 individuals is justified. This part of the grounds for appeal is not acceptable.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)