Defendant 1 and one other

Defendants and Prosecutor (Defendants)

For the purpose of sending (prosecution), for the sake of jurisdiction, for the sake of Red Cross, and for the purpose of public trial (public trial)

Attorneys Ch Sung-gu et al.

Seoul Central District Court Decision 2015 Gohap690, 2015 Gohap728 (Consolidated) Decided January 22, 2016

1. The part of the lower judgment against the Defendants (including the part of acquittal in the grounds) shall be reversed in its entirety.

Defendant 1 shall be punished by imprisonment for three years and by imprisonment for two years, respectively.

However, the execution of the above punishment shall be suspended for four years for Defendant 1, and for three years for Defendant 2 from the date this judgment became final and conclusive.

Defendant 1 shall order each community service for 160 hours and 120 hours to Defendant 2.

2. The prosecutor's appeal on the part not guilty (excluding the part not guilty in the grounds) among the judgment below is dismissed.

1. Summary of grounds for appeal;

A. Prosecutor's misapprehension of the legal principles and factual errors

The Defendants’ act of holding an outdoor assembly or demonstration held on July 24, 2014 does not coincide with the reported matters in advance, time, place, and method. However, the lower court found the Defendants not guilty on the grounds that there was no change to the organizer or participating organization of the assembly or demonstration initially reported, and thereby holding the Defendants not complying with the order of dispersion on the ground that there was no change to the organizer or participating organization of the assembly or demonstration (the part not guilty in the grounds) and that the Defendants did not comply with the order of dispersion on the grounds of the unreported demonstration (the part not guilty in the disposition).

B. misunderstanding of facts and misapprehension of legal principles by the Defendants

1) The Defendants’ violation of the Assembly and Demonstration Act regarding the Defendants’ assemblies of between April 11, 2015 and 19:05 (hereinafter “the cultural system of April 11, 2015”) and assemblies of April 16, 2015 between April 19:00 and 21:10 (hereinafter “the memorial system of April 16, 2015”).

Whether a certain assembly constitutes an assembly under Article 15 of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) shall be determined by comprehensively taking into account all the circumstances, such as the main purpose, date, time, place, method, number of participants, mode of conduct by participants, details of progress, time required, etc., and whether there exists a risk of infringing on other persons’ fundamental rights or public safety and order. The performance after such prior report is unnecessary ought to be deemed separate from the above assembly. However, during the assembly as of April 11, 2015 and the memorialism as of April 16, 2015, the assembly constitutes an assembly on art, ceremony, etc. as stipulated under Article 15 of the Assembly and Demonstration Act, and there is no risk of infringing on other persons’ fundamental rights or public safety and order, and such assembly is also carried out thereafter, it is not necessary to make a prior report. Nevertheless, the lower court should be the sole premise that one assembly should be one of the objectives of an assembly, and it is a political criticism for the purpose and purpose of an assembly and for criticism of Article 15.

2) Defendant 1’s injury or injury caused by the obstruction of performance of special duties or damage to special public goods on April 18, 2015

As the number of unspecified general citizens participated in the assembly and demonstration on April 18, 2015, there was no system of command or order during the assembly and demonstration. Accordingly, Defendant 1 was not able to give instructions or directions to the participants in the assembly and demonstration. Defendant 1, the sponsoring party (hereinafter “416 solidarity”), demanded that the military be sent to the place where they have a natural family member, but the participants did not have the authority to give such instructions or directions. As such, Defendant 1 was unable to control the unspecified number of participants, and was not at the scene of the violence demonstration prior to the so-called Madical square on that day, and there was no functional control over the violence of 50 persons among the participants, and there was no functional control over the violence of 50 persons among them.

Nevertheless, the lower court determined that Defendant 1 had been able to have anticipated that Defendant 1 would have been able to have been injured by police officers during the process of gathering violence with the participants in the assembly and demonstration, and that Defendant 1 had been able to have been able to have been able to have been able to receive injuries from police officers.

3) Defendant 1’s defamation

Defendant 1’s statement of facts constituting the crime of defamation was not made because it was not proven by the prosecutor as to whether the statement made by Defendant 1 constitutes a false statement of facts, even if the statement was made by Defendant 1 on June 22, 2015, and it was merely a demand for transparent information disclosure with respect to the public official, and thus, it did not constitute a case where illegality is not found in accordance with Article 310 of the Criminal Act, since Defendant 1’s statement was merely a demand for transparent information disclosure with respect to the public official.

4) As to the Defendants’ assemblies on July 24, 2014 No. 100 on July 24, 2014

A) The point of deviation from the reported scope

Unlike the contents of the prior advance report, the Defendants did not intend to occupy the previous lane without permission between the participants in the assembly and demonstration, and did not seem to have planned to drive it into a luminous plaza, and did not have to participate in it. Therefore, the Defendants are not liable to deviate from the scope of the report.

B) The point of general traffic obstruction

Defendants did not participate in the progress at the time and did not engage in any general traffic obstruction act. Moreover, in the process of exercising the freedom of assembly, the illegality of traffic obstruction may not be recognized. Rather, the police attempted to control the demonstration with the side wall and career without considering the traffic flow scheme at all, thereby seriously interfering with general traffic.

5) The Defendants’ repeal of the Enforcement Decree of the Special Act on the Sewol ferry of April 11, 2015 and the Defendants’ total action for the Symnae of the Sewol ferry of March 2015

A) The point of non-compliance with the dispersion order

Although the police did not clearly cause a direct danger to the legal interests of others or public peace and order, the police has ordered a peaceful assembly and demonstration without any effort to guarantee a peaceful assembly and demonstration in a manner that restricts the freedom of assembly at a minimum. Such dispersion order by the police is unlawful.

B) The point of general traffic obstruction

Since the installation of a road by the police has lost the function of the road, it cannot be viewed as a road subject to the general traffic obstruction, and it cannot be viewed as a direct danger to public safety and order.

C) Specific obstruction of performance of official duties

The act of the police in blocking the passage of the participants in assemblies and demonstrations by installing a wall with a fence and a police bus is an unconstitutional exercise of public authority that infringes citizens' general freedom of action, and such act is also an excessive exercise of public authority, such as spraying and water distribution. Therefore, it cannot be deemed a legitimate performance of public duties. Moreover, the Defendants did not agree with the fact that some of the participants in assemblies and demonstrations assault a police officer, and did not directly participate therein.

6) Defendants’ Maternal Action Concerning the Defendant’s Maternal Action on April 16, 2015 by the People of the Republic of Korea for the 1st century.

A) The holding of an unreported outdoor assembly or demonstration since 21:05

The surviving family members and the participants of the memorial services have completed memorials in Seoul Square and tried to divide and unconstitutionalize the victims into the branch office of the Sewol ferry disaster, which is located in the Gwangju Square. This does not constitute an outdoor assembly or demonstration subject to a prior report.

B) The non-compliance with the dispersion order

The Defendants were only the peaceful movement with their surviving family members to the decentralization for the purpose of the victims of the Sewol ferry and did not clearly bring about a direct danger to the legal interests of others or public peace and order. Thus, the police’s dispersion order is unlawful.

C) The point of general traffic obstruction

The police has already lost its function as a road by blocking a procession with a sloping and career.

D) Specific obstruction of performance of official duties

Defendant 1 did not create relief or instigate a demonstration team, and the police rather took an excessive response.

7) The holding of Defendant 1-1’s non-reported outdoor assembly with respect to 1/1 to 5/2 of May 1, 2015 to 1/205 to 1/100 of all citizens.

Although Defendant 1 did not participate in the above event or publicly recruited it, it is unreasonable to recognize Defendant 1 as holding an assembly only by encouraging Defendant 1 to participate in the assembly on the 416 joint and several website.

8) The point of Defendant 2’s general traffic obstruction on August 15, 2014

According to the nature of assembly and demonstration, uniform recognition of interference with general traffic in the assembly and demonstration is to punish fundamental rights under the Constitution.

C. The prosecutor and the Defendants’ assertion of unreasonable sentencing

With respect to each sentence sentenced to the Defendants (Defendant 1: 3 years of imprisonment, 4 years of probation, 160 hours of community service, 2 years of imprisonment, 3 years of probation, 120 hours of community service, 120 hours), the court below asserts that the Defendants are too unreasonable, and that the prosecutors are too uneasible and unfair.

2. Ex officio determination

On July 24, 2014, which was held by the Defendants during the trial, the prosecutor applied for the amendment of the Act to the effect that the Defendants’ primary facts charged were “the primary facts charged as of July 24, 2014,” and this court permitted it. As such, the part of the judgment below is no longer maintained. Furthermore, the part of the judgment below against the Defendants’ violation of the Act due to the deviation from the scope of the report by the Defendants, which is the ancillary facts charged as of April 26, 1991, is no longer reversed (see Supreme Court Decisions 90Do1958, Apr. 26, 1991; 98Do3549, Feb. 12, 199; 2006Do9028, Apr. 27, 2007; 201Do371, Sept. 29, 2011).

Each of the remaining arguments except the Defendants and the Prosecutor’s assertion of unfair sentencing, despite the above reasons for ex officio reversal, are still subject to the judgment of this court, and this is examined below.

3. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

A. Relevant legal principles

If an outdoor assembly or demonstration was held beyond the bounds of identity with the reported outdoor assembly or demonstration, such assembly or demonstration would be in violation of Article 6(1) of the Assembly and Demonstration Act. However, under the circumstances where its identity is maintained, “an act obviously deviating from the scope of the reported purpose, date, time, place, method, etc.” Article 16(4)3 of the Assembly and Demonstration Act constitutes a violation of Article 16(4)3 of the same Act. In light of the language and text of Article 16(4)3 of the same Act, even if the organizer who reported the outdoor assembly or demonstration deviates from the scope of the reported outdoor assembly or demonstration, it does not constitute an act of holding an outdoor assembly or demonstration without permission for the same purpose, date, place, method, etc. as the first reported outdoor assembly or demonstration from the beginning, or an outdoor assembly or demonstration held in excess of the first reported contents under the direction of the organizer or participating organization, etc., or an outdoor assembly or demonstration held in excess of the reported contents under the direction of the organizer or participating organization, etc., even if it appears to have been held beyond the first 20.

B. Determination

In light of the above legal principles, it is reasonable for the court below to determine the identity of the demonstration as the main factor to consider the change of the organizer or participating organization, and further, in light of the circumstances as shown in the court below's holding based on the evidence duly adopted and investigated by the court below, the evidence submitted by the prosecutor at the court below and the court below alone cannot be deemed as having been proved without reasonable doubt that the defendants held a demonstration without prior report or held a demonstration beyond the extent that it is identical to the prior report by the chief of the competent police station. In addition, as the court below properly stated, even if the defendants did not comply with the dispersion order issued by the police on the ground that the demonstration was not reported, this constitutes a violation of the Act due to the failure to

Therefore, the judgment of the court below on the part not guilty (including the part not guilty in the grounds) is just and the prosecutor's assertion on this is not justified.

4. Determination on the Defendants’ assertion of misunderstanding of facts and misapprehension of legal principles

A. The Defendants’ assertion as to the violation of each Act and subordinate statute regarding the cultural system of April 11, 2015 and the memorial system of April 16, 2015

1) Relevant legal principles

A) The purport of the Assembly and Demonstration Act, along with the reporting system as to an outdoor assembly, provides for prior measures to protect legitimate outdoor assembly by grasping the nature and size of the outdoor assembly in advance, as well as to protect legitimate outdoor assembly by providing specific information about the outdoor assembly to an administrative agency, thereby preventing infringement of other persons’ fundamental rights and maintaining public safety and order. Meanwhile, in cases of an assembly related to academic studies, art, sports, religion, ceremony, friendship, entertainment, funeral and ancestor worship, funeral and ancestor worship, and national events, there is no need to take prior measures because there is a very high risk of undermining other persons’ fundamental rights or public peace and order. Therefore, if the nature or purpose of the assembly constitutes an assembly as provided in Article 15 of the Assembly and Demonstration Act, it cannot be punished as an unreported outdoor assembly even if it did not make a prior report (see Supreme Court Decision 2011Do2393, Mar. 28, 2

B) However, even if the competent police station knew that an outdoor assembly or demonstration will be held or such assembly or demonstration will be peacefully held, Article 15 of the Assembly and Demonstration Act is not exempted from its duty to make a prior report (see Supreme Court Decision 2007Do1649, Jul. 9, 2009). However, in light of the fact that Article 6 of the Assembly and Demonstration Act is excluded from the application of the prior report only for the assembly listed in Article 15 of the Assembly and Demonstration Act, a certain assembly includes an assembly such as “an assembly of literature, art, sports, religion, ceremony, friendship, entertainment, funeral, funeral and ancestor worship, and national border event,” and it does not pose a risk of infringing other persons’ fundamental rights or public safety and order, Article 15 of the Assembly and Demonstration Act cannot be deemed as being applied if such assembly or demonstration was held for the purpose of delivering it to them (see Supreme Court Decision 2005Do1543, May 12, 2005).

2) Determination

A) April 11, 2015 cultural festivals

The circumstances acknowledged by the lower court and the trial duly adopted and investigated by evidence, namely, ① Joint 416 publicly announced in advance that “the total action to abolish the Enforcement Decree of the Government on April 11, 2015,” ② the participants in the assembly use yellow clocket as “Shoh,” and click click click click click click click clclclcket as “the clck clck clck clck clck clck clck clc clc cl clc cl cl cl cl cl cl cl cl cl cl cl cl cl cl cl cl cl cl cl cl cl cl cl cl cl cl cld cl clc cl cl cl.

B) Pool on April 16, 2015

(6) On April 16, 2015, the lower court and the first instance court stated that the 416th anniversary of the lawful adoption and investigation of the evidence of the first instance court and the second instance court would be able to use the phrase “the official flag,” which is installed in the e.g., the hull flag,” and that it would be flaged to the flag of the flag established in the e.g., by using the 4th anniversary of the 6th anniversary of the event of the 1st century, and that the 4th anniversary of the 6th anniversary of the event of the 4th anniversary of the 6th anniversary of the 5th anniversary of the 4th anniversary of the 1st election Decree, Defendant 1 would be able to use the 4th anniversary of the 5th anniversary of the 1st election of the 5th anniversary of the 1st election of the 5th anniversary of the 1st election of the 5th anniversary of the 1st election of the 4th anniversary of the 2th election of the 5th election.

C) Sub-determination

As seen above, the cultural system of April 11, 2015 and the memorial system of April 16, 2015 do not constitute an assembly as prescribed in Article 15 of the Assembly and Demonstration Act. As such, the Defendants’ assertion on this is not acceptable.

B. Defendant 1’s assertion on the injury or injury caused by special obstruction of performance of official duties or damage to special public goods on April 18, 2015

1) Relevant legal principles

형법 제30조 의 공동정범은 공동가공의 의사와 그 공동의사에 기한 기능적 행위 지배를 통한 범죄 실행이라는 주관적ㆍ객관적 요건을 충족함으로써 성립하는바, 공모자 중 일부가 구성요건 행위 중 일부를 직접 분담하여 실행하지 않은 경우라 할지라도 전체 범죄에 있어서 그가 차지하는 지위, 역할이나 범죄 경과에 대한 지배 내지 장악력 등을 종합해 볼 때, 단순한 공모자에 그치는 것이 아니라 범죄에 대한 본질적 기여를 통한 기능적 행위지배가 존재하는 것으로 인정된다면, 이른바 공모공동정범으로서의 죄책을 면할 수 없다( 대법원 1998. 5. 21. 선고 98도321 전원합의체 판결 , 2004. 6. 24. 선고 2002도995 판결 , 2005. 3. 11. 선고 2002도5112 판결 , 2006. 12. 22. 선고 2006도1623 판결 등 참조). 그리고 이 경우, 범죄의 수단과 태양, 가담하는 인원과 그 성향, 범행 시간과 장소의 특성, 범행과정에서 타인과의 접촉 가능성과 예상되는 반응 등 제반 상황에 비추어, 공모자들이 그 공모한 범행을 수행하거나 목적 달성을 위해 나아가는 도중에 부수적인 다른 범죄가 파생되리라고 예상하거나 충분히 예상할 수 있는데도 그러한 가능성을 외면한 채 이를 방지하기에 족한 합리적인 조치를 취하지 아니하고 공모한 범행에 나아갔다가 결국 그와 같이 예상되던 범행들이 발생하였다면, 비록 그 파생적인 범행 하나하나에 대하여 개별적인 의사의 연락이 없었다 하더라도 당초의 공모자들 사이에 그 범행 전부에 대하여 암묵적인 공모는 물론 그에 대한 기능적 행위지배가 존재한다고 보아야 한다( 대법원 2007. 4. 26. 선고 2007도428 판결 , 2007. 9. 20. 선고 2007도4750 판결 , 대법원 2010. 12. 23. 선고 2010도7412 판결 , 대법원 2013. 9. 12. 선고 2013도6570 판결 등 참조). 또한, 어느 범죄에 2인 이상이 공동가공하는 경우 공모는 법률상 어떠한 정형을 요구하는 것이 아니고 2인 이상이 공모하여 범죄에 공동가공하여 범죄를 실현하려는 의사의 결합만 있으면 되므로, 비록 암묵적으로라도 수인 사이에 의사가 상통하여 의사의 결합이 이루어지면 공모관계가 성립하고, 이러한 공모가 이루어진 이상 실행행위에 직접 관여하지 아니한 자라도 다른 공모자의 행위에 대하여 공동정범으로서 형사책임을 지며, 또 결과적가중범의 공동정범은 기본행위를 공동으로 할 의사가 있으면 성립하고 결과를 공동으로 할 의사까지는 요하지 않는바, 특수공무집행방해치상죄는 단체 또는 다중의 위력을 보이거나 위험한 물건을 휴대하고 직무를 집행하는 공무원에 대하여 폭행ㆍ협박을 하여 공무원을 사상에 이르게 한 경우에 성립하는 결과적가중범으로서, 행위자가 그 결과를 의도할 필요는 없고 그 결과의 발생을 예견할 수 있으면 족하다( 대법원 2002. 4. 12. 선고 2000도3485 판결 , 2008. 6. 26. 선고 2007도6188 판결 등 참조). 한편 공모공동정범에 있어 그 공모에 관하여는 모의의 구체적인 일시, 장소, 내용 등을 상세하게 설시하여야 할 필요는 없고, 범행에 관하여 의사가 합치되었다는 것만 설시하면 된다( 대법원 2008. 11. 13. 선고 2006도755 판결 등 참조).

2) Determination

As seen in the above legal doctrine, the degree of control or neglect over the process of crime is one of the elements to determine the existence of functional control over the competitor. As such, in determining the degree of control or neglect, it may be considered as an important matter whether the command and order system exists in the participants in the assembly and demonstration. However, this is only one of the circumstances necessary to determine the degree of control or neglect, and it is only one of the circumstances necessary to determine the existence of functional control, and such characteristics of the organization or the right to command of the competitor is recognized, but it does not necessarily mean that the recruiter has a functional control over the crime.

Comprehensively taking account of all the following circumstances acknowledged by the lower court’s duly admitted evidence, Defendant 1 did not merely take the position of the person holding an assembly or demonstration on April 18, 2015 as a full-time operator of 416, but rather did not take the position of the police officers holding the assembly or demonstration at that time. In light of the situation and experience up to that time, several participants of an assembly or demonstration on April 18, 2015 could have anticipated or sufficiently anticipated physical conflict with the police officers who want to stop the assembly or demonstration from participating in an assembly or demonstration that may cause violence with the police officers. Furthermore, the lower court did not take any reasonable measures sufficient to prevent such conflict, and further, it was difficult to view that Defendant 1 and participants of the assembly or demonstration could have been aware of the fact that the crime was committed by Defendant 1’s act of causing harm to the police officers and participants of the assembly or demonstration more actively than that of the participants in the assembly or demonstration in the process of causing harm to the police officers and participants of the assembly or demonstration.

① On April 11, 2015, Defendant 1, who is a full-time operating member, planned the 4.16 Joint Chiefs to be “one-year centralized Action Week for People from April 11, 2015 to April 18, 2015,” and as of April 11, 2015, the Enforcement Decree of the Sewol ferry and the beginning of “total Force Action” during the Sewol ferry. On April 18, 2015, Defendant 1 planned the event to be “National Assembly and Cheongdae-man Joint Human Team” on April 18, 2015. As above, the event on April 18, 2015 was the last schedule of the Central Action Week.

② At each assembly and demonstration on April 11, 2015 and April 16, 2015, Defendants urged participants in the assembly and demonstration to take a walk in the direction of the Cheongdaedae, resulting in a conflict between the police and the participants in the assembly and demonstration, and resulting in a serious physical fighting between the participants and the police.

③ At around April 11, 2015, Defendant 1 arranged a demonstration, and used broadcasting vehicles, Defendant 1 told Defendant 1 to the effect that “it was easy for us to do so. I would be easy to do so.” On the beginning and April 18, 201, Defendant 1 told Defendant 1 to the effect that today’s fighting starts and it was difficult for Cheongdae-dae to put it into Cheong-dae by more force on April 18, 201, so that many people gather and go to Cheong-dae.”

④ At the end of the assembly on April 11, 2015, Defendant 2 also made a statement to the effect that “the body must be stringed by cutting off on April 16, 2015,” and that “the body should be cut off by cutting off on this string, even with force,” and on April 18, 2015.”

⑤ Even on April 16, 2015, Defendant 1 made a statement to the effect that “it is necessary to be wraped not only at the time when it is cut off, but also at the time when it is run in the square of the Seoul Metropolitan Government Office.” In addition, whether it is the State or not is the State? The President should not put forward again on this ground. It is time for us to put forward together with his bereaved family.”

④ On April 15, 2015, Defendant 1 posted a notice on Defendant 1’s homepage on the joint and several website of April 15, 2015, stating that “The date of April 18, 2015 is when earing and talking about earing about the government and political rights of earing about earing to ear. The author respondeds to the demand of the people only to the extent that their rights may be threatened. In order to prevent any harsh stimulities, now at present, when they need to be broken off.” Nonindicted 2 of the social members of an assembly held in the Seoul City’s square, Nonindicted Party 2 made a statement to the effect that “I am open to the luminous square” around April 16:30, 2015.

7) Defendant 1 participated in the demonstration on April 18, 2015, and was traveling along with the 416 Joint Steering Committee or operating committee members from time to time, and occupied the road along with the participants in the demonstration, organized the demonstration in the luminous square, and the Government may not recognize it as the Government if the Government does not resist the purport of the people. By today, there were many divisions, including the front-time Democratic Labor Team in front of the 24th century, and the front-time class of the 24th century. At the same time, Defendant 1 was able to be forgotten at the end of this night, which was created by our country. If his family and citizens are gathered, justice can be set, the truth can be revealed, and the government may speak to the corruption regime.”

8. The participants during the assembly committed acts such as cutting off the police with a twit line, disturbance of day, etc., cutting off the police and the police bus to the police, cutting off the police safety pen, cutting off the police boat, cutting off the police boat, cutting off the police boat by drinking and cutting off the police boat, cutting off the bus with the police boat, cutting off the bus on the police bus, securing the space between the bus with the wall bus and the bus by carrying the bus by hand, and securing many participants. This cannot be seen as an contingent action by those who participated in the demonstration, but rather is close to a somewhat organizational form, and if the sponsoring side, including Defendant 1, etc., made efforts to restrain and remove such violence, it appears that it could have been prevented.

9. An act of violence by part of the participants has been continued for a long time, and on April 18, 2015, the organizer of the assembly and demonstration, including Defendant 1, who was at the scene of the demonstration on April 18, 2015, was or was able to look at the preparation process of such an act of violence or the scene of violence thereafter.

(10) On April 18, 2015, the organizer of an assembly or demonstration including Defendant 1 did not make efforts to maintain order at the time of the assembly or demonstration, and did not make efforts to suppress and remove violence, such as making a declaration of completion of the demonstration in a situation where it is impossible to maintain order as above.

C. Defendant 1’s assertion as to defamation

1) Relevant legal principles

(A) the freedom of expression and its limitation;

All citizens have the freedom of expression, such as the freedom of speech and press. The content of the freedom of expression is the freedom of expression to form one’s own opinion, the freedom of expression to express and communicate that opinion to many and unspecified persons, and the right to express one’s own opinion and contribute to the formation of public opinion is also included in the contents of the freedom of speech and press. Such freedom of expression is not only an indispensable citizen’s fundamental right under the modern democratic political system, but also an important fundamental right to realize human dignity and value by means of realizing individual’s personality and personality (see, e.g., Supreme Court Decision 2012Da105482, Mar. 10, 2016).

However, since freedom of expression is not absolute and unlimited, in particular, an expressive act is likely to inevitably conflict with another person’s rights, reputation, social ethics, or morality, Article 21(4) of the Constitution provides that “the press and the publication shall not infringe another person’s reputation, rights, or public morals or social ethics,” emphasizing liability and obligations with respect to freedom of expression, and at the same time, stipulating the requirements for restriction on such freedom. Likewise, as with other fundamental rights, it may be restricted for national security, public welfare, and maintenance of order as stipulated in Article 37(2) of the Constitution (see, e.g., Supreme Court Decisions 2012Da105482, Mar. 10, 2016; 2012Hun-Ba37, Jun. 27, 2013). The offense of defamation under Article 307 of the Criminal Act and the offense of insult under Article 311 of the Criminal Act constitute a violation of the Act that restricts another person’s external reputation or reputation, which is not a violation of the legal interests and interests.

Meanwhile, in setting the limitation between freedom of expression and protection of reputation, the standard of review should vary depending on whether the victim is a public figure or a private figure, or whether the expression concerns a public concern or belongs to a pure private sphere, and in the case of expression as to a matter of public and social meaning, the restriction on freedom of speech should be mitigated (Supreme Court Decision 2006Da53214 Decided April 24, 2004). Considering that public officials’ morality and integrity or work performance should always be subject to citizen surveillance and criticism, this function of surveillance and criticism should not be easily restricted unless it is malicious or manifestly unreasonable (see Supreme Court Decision 2004Da35199 Decided May 12, 2006). However, if the expression is based on 207Da3270 decided on the basis of public official’s awareness and criticism, it should not be widely admitted to the extent that it does not constitute an attack or attack of public official’s character.

B) The “statement of fact” in the crime of defamation

In the crime of defamation, a statement of fact means a report or statement of specific past or present facts, which is an expression of opinion with a value judgment or evaluation, and the contents of the statement can be proven by evidence. In determining whether the report or statement is a fact or an opinion, it shall be determined by considering the overall circumstances, including ordinary meaning and usage of the language, possibility of proof, context in which the speech in question was used, social situation in which the expression was made, etc. (see, e.g., Supreme Court Decisions 2010Do17237, Sept. 2, 201; 2013Do14875, Jun. 23, 2015; 2013Do14875, Jun. 28, 2015). Meanwhile, apart from the fact that the victim’s social evaluation is objectively lowered, it shall be determined by the Supreme Court Decision 208Do1879, Jun. 23, 2015; 208Do1987, supra.

C) false burden of proof

Inasmuch as the facts constituting the constituent elements of a crime charged in a criminal trial are subject to the prosecutor’s burden of proof, whether it is subjective or objective, the fact that the person’s social evaluation was revealed in the case prosecuted for the crime of defamation of false facts, and that the Defendant knew that the alleged facts were false as well as false, while recognizing that the alleged facts were false, all the prosecutor’s proof cannot be established as to the crime of defamation by publication of false facts. However, in determining whether the aforementioned facts were true or not, as well as the proof of the absence of such fact is positive, if the absence of a specific act at a specific period and at a specific place, the prosecutor who is the active party must prove it without reasonable doubt. However, it is difficult to prove the absence of a specific period and space, while it is difficult to view and prove the existence of such facts in light of social norms, and thus, it is difficult to determine whether the prosecutor bears the burden of impeachment. Accordingly, the prosecutor is obliged to present 205 Supreme Court’s explanation of such false facts as evidence 200, and thus, it should be presented 2000,509.

D) Whether the illegality of Article 310 of the Criminal Act is denied

There is no room to apply Article 310 of the Criminal Act to the act that constitutes defamation by a statement of false facts (see, e.g., Supreme Court Decisions 92Do234, Apr. 13, 1993; 2010Do2690, May 9, 2012; 2013Do4786, Jul. 9, 2015).

(ii) the facts of recognition

According to the evidence duly admitted and examined by the court below, the following facts can be recognized:

① As seen above, Defendant 1, as the chairman of the National Countermeasure Council’s Joint Operation Committee’s 416 Full-time Operating Committee, hosted and actively participated in an assembly or demonstration related to the Sewol ferry. On June 19, 2015, the investigative agency seized and searched Defendants and 416 Joint Offices, etc. on the same day, Defendant 1 criticized the police’s response to the assembly or demonstration related to the Sewol ferry, and criticized the prosecution’s search and seizure of the search and seizure, and conducted a briefing session with the content that it is possible to ascertain the truth of the Sewol ferry’s staff and to punish the responsible person.

② Nevertheless, on June 22, 2015, when the search and seizure procedure of the investigation agency against the Defendants, etc. was in progress, Defendant 1 again testified in the order of “the Defendants, 416 Joint and Several Offices, 000, and △△△△△△△△ Joint and Several Offices,” and “a claim against the Government and the police against the infringement of the freedom of assembly and demonstration at the Sewol ferry-related assembly and demonstration” and “a claim against the above seizure and seizure, even if having already presented evidence at the site of the assembly and demonstration,” and “a statement of intent to continuously carry out the above search and seizure without any pressure of the government,” and the entire content as follows.

본문내 포함된 표 4월 19일 사무실과 자동차에 대해서 압수수색을 했는데 그 다음날 핸드폰을 또 압수해 갔습니다. 같은 날 영장이 나왔는데 첫날 오고 또 둘째 날 오고 가택 수색영장은 언제 집행할지 아직 모르겠습니다. 왜 이렇게 하는지 저도 잘 모르겠습니다. 오늘 서울경찰청 가서 핸드폰 압수수색 과정을 밟고 왔습니다. 핸드폰을 이미징 복사를 해서 해시 값을 뜨고 그런 상태이고, 피고인 2 위원장은 거기서 안돼서 경찰청 본청으로 가서 그 작업을 하고 있는 상황입니다. 정말 어처구니가 없습니다. 집회시위의 자유는 헌법 제21조에 의하면 집회, 시위, 결사, 언론, 출판 이런 것은 허가가 아닙니다. 국가가 허가하고 말고 하는 게 아닙니다. 지금 집시법이 잘못됐고 그리고 관행이 잘못돼서 마치 허가제처럼 운영이 되고 있는데 집회 시위는 헌법도 보장하고 있는 국민의 기본권입니다. 이 집회 시위의 자유를 우리가 행사하겠다는 것을 가로막은 것 그것은 정부입니다. 유가족을 폭행하고 캡사이신을 쏴댔고 물대포를 쏴대면서 집회시위의 자유를 가로막은 것 그것은 이 정부고 경찰이라는 것을 다 알고 있습니다. 헌법재판소의 결정만 해도 무시하면서 차벽을 설치해놓고 시민들이 일체 이동하지도 못하게 해놓고 도리어 큰소리 칩니다. 집회 시위의 자유, 백번 양보해도 집회 시위와 관련한 부분은 압수수색할 대상이 아닙니다. 집회 현장에서, 시위 현장에서 이미 채증 다 했고 행위가 다 끝난 일입니다. 집을 뒤져서 핸드폰을 뒤져서 사무실을 뒤져서 뭘 어떻게 하려는 겁니까? 이게 집회시위의 자유를 억압하는 걸 넘어서 결사의 자유조차 허용하지 않겠다, 416 연대 이런 단체를 결성하는 것조차 허용하지 않겠다는 겁니까? 묵과할 수 없는 행동을 하고 있습니다. 사실 압수수색할 것은 저 청와대입니다. 정말 궁금합니다. 국민들이 그런 의혹을 제기하고 있습니다. 4월 16일 7시간 동안 나타나지 않았을 때 뭐하고 있었냐? 혹시 마약하고 있던 거 아니냐? 전 궁금합니다. 청와대 압수수색 해서 마약 하고 있었는지 아니었는지 한번 확인했으면 좋겠습니다. 또 그런 얘기도 나옵니다. 피부미용, 성형술 등등 하느라고 보톡스 맞고 있던 거 아니냐? 보톡스 맞으면 당장 움직이지 못하니까 7시간 동안 그렇게 하고 있었던 것 아닌가 그런 의혹도 있습니다. 그것도 한번 확인해 봤으면 좋겠습니다. 저 청와대 곳곳을 다 뒤져서 구석구석을 다 뒤져서 마약이 있는지 없는지, 보톡스 했는지 안 했는지 확인해보고 싶은 마음이 굴뚝같습니다. 이렇게 정부가 폭력으로 경찰력으로 공권력으로 저희 416 연대 탄압한다고 해서 416 연대 무너지지 않습니다. 세월호 참사 아무리 덮으려고 해도 덮을 수 없습니다. 여기 피해자들 유가족들 다 죽이지 않는 한 그리고 세월호 참사의 진실을 알고 싶어 하는 밝히고 싶어 하는 저를 비롯한 이 나라의 국민 시민들 다 죽이지 않는 한 덮을 수 없습니다. 416 연대 탄압할 생각하지 말고 세월호 참사 덮을 생각하지 말고 빨리 국민의 요구에 항복하길 바랍니다. 국민의 요구에 부응해서 세월호 참사 진상규명특별위원회 제대로 작동할 수 있도록 협조해야 하고 시행령 폐기하고 특별조사위원회 안으로 받아들여야 합니다. 그렇지 않으면 우리는 계속 이 정부를 상대로 해서 싸울 수밖에 없습니다. 진실은 반드시 밝혀집니다. 진실은 반드시 밝혀내고 말 것입니다. 우리가 목숨이 붙어있는 한, 우리가 살아있는 한, 우리가 사람임을 포기하지 않는 한, 우리는 반드시 진실을 밝힐 것이고 그 진실을 밝히는 길을 막는 것이라면 그 누구라도 싸울 수밖에 없습니다. 그래야만 이 나라가 보다 더 안전해지고 이 나라가 보다 더 사람이 사람답게 살 수 있는 그런 나라가 될 수 있을 것이기 때문입니다. 그런 나라를 만들기 위해서 아무리 모진 탄압 속에서도 꿋꿋하게 굳세게 더욱 강하게 저희 416 연대 발족도 제대로 하고 더욱 힘차게 싸워가겠습니다. 더욱 힘차게 싸워갈 것을 약속하겠습니다.

③ The instant remarks consist of the bottom part of the entire remarks as indicated in the foregoing paragraph (2) and the content is Cheongdae-dae-dae-dae-dae-dae-dae-so, where search and seizure is to be carried out by the president of the non-indicted, for 7 hours immediately after the Sewol ferry 1st century, who was the non-indicted 1, filed a suspicion that the non-indicted 1 would not take narcotics or undergo the Stockholm for 7 hours immediately after the Sewol ferry 1st century. In order to confirm whether there was narcotics through search and seizure of the Blux, or whether the Stockholm was carried out.”

3) Determination

A) The instant statement pertains to the President’s happiness at the time of the Sewol ferry incident, and it constitutes an issue of public concerns. However, the part used by Defendant 1, especially the purport that Defendant 1 “the President individual has carried out narcotics,” regardless of whether it is a statement of fact or an expression of opinion, cannot be deemed to be a scarcity or a scarcity in light of the negative images of narcotics in our society, and it cannot be deemed that it constitutes a malicious and extremely rush expression, and thus, it cannot be deemed not to have lost reasonableness. Accordingly, the instant statement constitutes an expression that cannot be protected by the freedom of expression, and thus, constitutes a crime of defamation or insult that may be punished in accordance with relevant laws, such as the crime of insult or insult.

B) As to whether the instant speech constitutes a case where a specific fact was indicated, in full view of the following: (a) the fact of recognition and the evidence duly admitted and examined by the lower court; (b) the ordinary meaning and usage of the language as follows; (c) the possibility of proof; (d) the overall nature of Defendant 1’s speech; (c) the detailed context of the part of the instant speech; and (d) additional remarks to supplement the factual nature thereof; and (d) the social situation at the time of the instant speech, etc., Defendant 1, despite the overall context where the instant speech was made, may be deemed to have expressed the following facts: (a) Defendant 1, despite the overall context where the instant speech was made, stated that “the Nonparty Nonparty 1 was narcotic or Stockholm at the time of the Sewol ferry call; and (b)

① The same words as “herbing narcotics” or “herbing narcotics” are used as an anti-defensive expression, such as causing the other party to the speech. However, the suspicion introduced by Defendant 1 through the speech of this case, although the expression was made bypassing and indirectly, it may be said that “it is due to the fact that the whereabouts of the non-indicted 1 were either (Medication) or under the Stockholm procedure, not known at the time of the occurrence of the Sewol ferry incident.” From the standpoint of a person who receives such expressions or expressions, it is difficult to view that the speech of this case merely expressed the judgment or behavior of the non-indicted 1 or the President, etc., and it is deemed that the specific behavior of the non-indicted 1 as at the time immediately after the Sewol ferry 1 appears.”

② It is true that evidence can be proven whether the Nonindicted Party was engaged in narcotics or Stockholm at the time of the occurrence of the Sewol ferry accident.

③ Defendant 1 introduced the suspicions between the Nonindicted Party’s above administration of narcotics or the Stockholm procedure, and added to the purport that “it should be followed whether there was a narcotic drug by searching and searching lux, and whether there was Stockholm” under the premise that the substance of the suspicions may be true.

④ Defendant 1 made the instant speech by means of a press conference with which many and unspecified persons can contact.

⑤ At the time, the Sewol ferry was under the interest of the people due to the seriousness of the damage, and there was a criticism that the government did not perform its duties properly for seven hours after the incident of the Sewol ferry. The suspicion of the President's happiness was generated in the context of the above criticism.

C) Furthermore, as to whether the instant statement was false or not, the evidence duly adopted and examined by the court below, and the prosecutor submitted to the court for the first time, the records of the Steering Committee of the National Assembly, the records of the Investigation Special Committee of the National Assembly of Korea (Extraordinary Minutes), the minutes of the Special Committee on Budget and Accounts of the Republic of Korea (Extraordinary Minutes), and the written reply on the materials requested by Non-Indicted 3 members, as to whether Defendant 1 was aware of the falsity, the presidential secretary, etc. received three written reports from the office of security and seven minutes from the office to the 20 minutes from the office of the National Assembly on April 16, 2014 without any external event at the time of the occurrence of the incident, and received 11 minutes from the office of the non-indicted 1’s office to the 10 minutes from the office of the public prosecutor’s office, and the prosecutor did not present any other official testimony or evidence as to whether it was false or non-indicted 1’s official, as it appears to be confidential.

D) Meanwhile, Defendant 1’s act constitutes defamation by publicly alleging false facts, and there is no room to apply Article 310 of the Criminal Act as seen earlier, as seen earlier.

E) Therefore, the lower court’s determination on this part of the facts charged is justifiable, and Defendant 1’s assertion on this part is without merit.

D. As to the Defendants’ violation of the Assembly and Demonstration Act on July 24, 2014

Comprehensively taking account of the following circumstances admitted by the court below and the evidence duly admitted and examined by the court below, the court below's determination is just and there is no merit in the defendants' assertion on this part.

① The Defendants shall be the Joint Operating Chairperson of the National Countermeasure Committee.

② On July 24, 2014, from around 21:30 to 23:59, the National Countermeasure Conference submitted a report on an outdoor assembly or demonstration under the name of “National Promotion of the Establishment of the Special Act on the Assistance to Family Members in the Sewol Ferry,” with the content that “8,00 persons are running through three lanes in the reverse direction to the front of the Ethical East-gun of the Ma-ro, Seoul S square ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Ma-ro 3 ? ? ? Ma-ro ? Ma-ri Ma-si ? Ma-gu Ma-dong Ma-dong, the Korean National Countermeasure Conference submitted a report on the outdoor assembly (

③ However, the national countermeasure conference announced the schedule on July 24, 2014 on its website, and announced the publicity posters posted at that place as “Woo-Seoul City/Seoul Cheong-Seoul Cheongmun square” along with the last 22 o’s family members, and described in the text, “I am going to the luminous square along with his family members at 10 o’s and 10 o’s family members.”

④ In addition, on July 22, 2014, the National Countermeasure Meeting announced on its website the “100-hour Action from July 21, 2014,” a schedule from July 21, 2014. As to the schedule on July 24, 2014, the National Countermeasure Committee announced “The Agency Promotion for Enactment of Special Act” - the “Temporary and Place: 22:00, and 22:0, which was promoted to a short-term agricultural growth of the luminous plaza.”

⑤ On July 24, 2014, at an assembly of the Seoul Square around 20:30 on July 24, 2014, Defendant 1 believed that “I believe I would be a special law for the third month of which I would be our bereaved family. The Government has no such example. However, the third month itself is an exceptional case. We cannot trust our judicial system. Therefore, we need to create a special law. There is no right to do so. We need to be responsible for the Cheongbu. We must be responsible for the Cheongbu. The Manacc is the Masojo. The Manac is the Masoftp. The Manac is the Masobso. As today, I instigated together with the bereaved family and the people to “I Dood”.

(6) Since the participants in the assemblies and demonstrations related to the previous Sewol ferry have moved along the lanes, it is reasonable to deem that the Defendants could have anticipated the participants to move along with the luminous square while moving along the lanes on July 24, 2014.

E. The defendants' remaining grounds for appeal

As to the defendants' remaining arguments on the grounds of unfair sentencing, the court below rejected the above assertion in detail on the judgment of the court below by stating the same argument at the court below. In comparison with the above judgment of the court below, the judgment of the court below is just and it is not erroneous in the misapprehension of law as alleged by the defendants. Accordingly, this part of the defendants' arguments are without merit.

5. Conclusion

Since the guilty part of the judgment of the court below (including the acquittal part of the grounds for appeal) against the Defendants has the above reasons for ex officio reversal, the above part shall be reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the defendants and the prosecutor's each assertion of unfair sentencing, and the judgment shall be rendered again through oral pleadings as follows. The prosecutor's appeal against the acquittal part (excluding the acquittal part of the grounds for appeal) among the judgment of the court below is without merit, and it shall be dismissed in accordance with Article 364(4) of

Criminal facts and summary of evidence

The criminal facts against the defendants recognized by this court and the summary of the evidence thereof are as stated in the corresponding column of the judgment of the court below, except for the addition of "Seoul Square" to "Seoul Square" in Section 7 Section 3 of the judgment of the court below and the summary of the evidence in the column of the evidence, "1. The homepage of the National Assembly Steering Committee of the Republic of Korea - the homepage of the National Assembly Countermeasures Council of the Republic of Korea - the President's response may be suppressiond by the police?" and "the records of the Steering Committee of the National Assembly of Korea, the records of the Special Committee on the Investigation into Korean Government Affairs (Extraordinary Minutes), the minutes of the Special Committee on Budget and Accounts of the Special Committee on Budget and Accounts for the Settlement of National Assembly Members (Extraordinary Minutes), and each statement in the response to the request of Non-Indicted 3 Council members" as stated in the corresponding column

Application of Statutes

1. Article applicable to criminal facts;

Defendant 1: Articles 22(3) and 16(4)3 of the Assembly and Demonstration Act, Article 30 of the Criminal Act (a deviation from the scope of report), Article 22(2), the main sentence of Article 6(1), Article 30 of the Criminal Act (excluding the holding of an assembly or demonstration without filing a report on April 18, 2015), Article 24 Subparag. 5, Article 20, Article 20(2), and (1)2 of the Assembly and Demonstration Act, Article 30 of the Criminal Act (a failure to comply with each dispersion order on April 18, 2015): Article 185, Article 30 of the Criminal Act (a deviation from the scope of report); Article 22(2), the main sentence of Article 6(1); Article 30 of the Criminal Act (a) (b) of the Assembly and Demonstration Act; Article 14(1), Article 136(1), Article 30(1), Article 30(1) of the Criminal Act; Article 30(1, Article 4(1) of the Criminal Act (2) of the Criminal Act

Defendant 2: Article 22(3) and Article 16(4)3 of the Assembly and Demonstration Act, Article 30 of the Criminal Act (a deviation from the scope of report), Article 22(2) and the main sentence of Article 6(1) of the Criminal Act, Article 30 of the Criminal Act (a holding of an assembly or demonstration without filing a report), Article 24 Subparag. 5, Article 20(2) and Article 20(1)2 of the Assembly and Demonstration Act, Article 30 of the Criminal Act (a violation of each dispersion order: (a violation of each dispersion order is committed on May 1, 2015 or on February 2, 200; a violation of Article 20(1)5 of the Criminal Act, Article 185 and Article 30 of the Criminal Act (a violation of each general traffic obstruction), Article 144(1), Article 136(1), and Article 30(1) of the Criminal Act (a) of the same Act.

1. Selection of punishment;

Defendant 1: Selection of imprisonment for each crime except the injury resulting from special obstruction of performance of official duties

Defendant 2: Selection of imprisonment

1. Aggravation for concurrent crimes;

Defendant 1: The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act. Article 50 (Aggravation of Concurrent Crimes of Injury resulting from Special Obstruction of Performance of Official Duties on Kim Do, which is the largest punishment and punishment)

Defendant 2: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment provided for by general traffic obstruction on May 1, 2015, with the largest punishment)

1. Suspension of execution;

Defendants: each of the defendants' grounds for sentencing under Article 62(1) of the Criminal Act

1. Social service order;

Defendants: each of the Defendants under Article 62-2 of the Criminal Act

Reasons for sentencing

1. The scope of punishment;

(a) Defendant 1: Imprisonment for 3 years to 45 years;

(b) Defendant 2: Imprisonment for not more than 15 years;

2. Scope of the recommended sentencing criteria; and

A. Defendant 1

1) Crimes of violation of each Act and subordinate Act and interference with general traffic and defamation

The sentencing criteria are not set.

2) Each special obstruction of performance of official duties

[Types] The obstruction of the performance of official duties / the coercion of official duties (Type 1) for the crime group of obstruction of the performance of official duties

[Special Persons] Cases where the power of an organization or a group or a group of public officials has shown or carried dangerous objects (type 1), and where there are many public officials who have suffered damage (type 1)

[Scope of Recommendation] One year to six years (Aggravated Field)

3) Crimes of causing bodily injury to each special obstruction of performance

[Types] Injury or injury resulting from a special obstruction of public service by causing a death or injury to a special obstruction of public service (type 1)

[Special Persons] Cases where the power of an organization or a group or a group of public officials has shown or carried dangerous objects (type 1), and where there are many public officials who have suffered damage (type 1)

[Scope of Recommendation] Three to nine years (Aggravated Field) imprisonment

(iv)an injury to each special goods for public use;

[Types] Invalidity and Destruction of Public Goods (Type 1) as a crime group of obstruction of performance of official duties

[Special Persons] The case of showing the power of an organization or a group or carrying dangerous objects

[Scope of Recommendation] One year to four years (Aggravated Field)

(e) Scope of final recommendation: Imprisonment for not less than three years (by the lower limit of the sentencing criteria);

B. Defendant 2

1) Each special obstruction of performance of official duties

[Types] The obstruction of the performance of official duties / the coercion of official duties (Type 1) for the crime group of obstruction of the performance of official duties

[Special Persons] Cases where the power of an organization or a group or a group of public officials has shown or carried dangerous objects (type 1), and where there are many public officials who have suffered damage (type 1)

[Scope of Recommendation] One year to six years (Aggravated Field)

(b) The scope of final recommendation: Imprisonment for not less than one year (by the lower limit of the sentencing criteria);

3. Determination of sentence;

The freedom of assembly and demonstration should be guaranteed to the maximum in a democratic society. However, the assembly and demonstration must be lawful and peaceful, and the harmony with other legal interests should be fully taken into account. Although the majority of criminal power on assembly and demonstration are well aware of the above facts, the Defendants did not observe the pertinent legal procedures and did not endeavor to pursue the assembly and demonstration in a peaceful manner without emphasizing only the legitimacy of the purpose of achieving the freedom of assembly and demonstration and its exercise even though they are well aware of such facts, they committed each of the crimes of this case by inducing a conflict with the police directly or indirectly.

However, there are circumstances to consider the circumstances and motives leading to the assembly or demonstration of this case. In addition, considering all of the sentencing conditions stipulated in Article 51 of the Criminal Act, such as the defendants' age, character and conduct, environment, family relationship, etc., the sentence like the order shall be determined.

The acquittal portion

Of the facts charged in the instant case, the summary of the violation of the Assembly and Demonstration Act pursuant to the hosting of a unreported demonstration on July 24, 2014 (main facts charged) is the same as that indicated in the primary facts charged on July 24, 2014. This constitutes a case where there is no evidence to prove the facts constituting a crime for the same reason as stated in the foregoing paragraph 3, and thus, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, in a case where the Defendants are found guilty of a violation of the Assembly and Demonstration Act due to the act of deviation from the scope of reporting, which

It is so decided as per Disposition for the above reasons.

(attached Form omitted)

Judges Lee Sung-ju (Presiding Judge) (Presiding Judge)