Defendant 1 and three others

Both parties

Kim Jong-hun (prosecution) and the interference in the course of trial

Law Firm LLC et al. and six others

Seoul Central District Court Decision 2014Gohap1256 Decided August 20, 2015

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants

1) misunderstanding of facts or misunderstanding of legal principles (the attempted arrest of July 25, 2013)

A) With respect to the attempted arrest part which the court below found guilty, there was no act of the Defendants that could be evaluated as an arrest act, and there was no intention for the Defendants to start the arrest (the objective elements and the absence of subjective elements).

B) Even if there was the Defendants’ act that can be evaluated as an arrest act, it is dismissed by the victim’s consent that constitutes the element of a crime (Article 15(1) of the Criminal Procedure Act). Even if there was no consent of the victim, it constitutes an erroneous act and an intentional act is dismissed as a mistake of fact (no intentional act due to a mistake of fact).

C) Even if the Defendants commenced the commission of arrest, the Defendants’ act constitutes legitimate self-defense or legitimate act and thus, the illegality is excluded (Dismissal of illegality due to self-defense or legitimate act).

D) The Defendants did not have the awareness of illegality, and furthermore, the Defendants cannot be punished because they constitute an error on the premise of the grounds for the dismissal of illegality (the existence of grounds for the dismissal of responsibility).

2) Unreasonable sentencing

The punishment sentenced by the court below against the defendants (the fine of KRW 2 million for each of the defendants 1, 3: the fine of KRW 2 million for each of the defendants 2, 2, and 4: the fine of KRW 1.5 million for each of the defendants) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts or misapprehension of legal principles

A) Defendants’ obstruction of performance of official duties on July 25, 2013

The order keeping line established on July 25, 2013 was established pursuant to Articles 5(1), 6, and 10(1) of the Act on the Performance of Duties by Police Officers for the purpose of maintaining public peace and order from June 10, 2013 before the Labor Relations Commission’s report on the assembly on July 11, 2013, and Article 156 of the Regulations on the Management of Police Equipment. Therefore, the order keeping line established for such purpose is still legitimate despite the court’s decision to suspend execution. Meanwhile, whether to maintain order under the Assembly and Demonstration Act (hereinafter “Act”), other than the order keeping line under the Act on the Election and Demonstration, can be determined by the police’s exercise of discretionary power under reasonable judgment. In light of the order keeping line under the Act, the head of the Seoul Southern Police Station (hereinafter “the chief of the Seodaemun Police Station”) established the victim’s notification of the order keeping line as well as the victim’s notification of the order keeping line under the Act, and the scope of the police officer’s notification of the order keeping line as well.

B) The Defendants’ injury or injury resulting from the arrest on July 25, 2013

(1) The crime of arrest constitutes an objective violation of the victim’s freedom of action. As long as the Defendants deprived of the victim Nonindicted 1’s physical freedom, the Defendants’ act should be deemed to have led to the acceptance of the crime of arrest.

(2) In light of the victim Nonindicted 1’s statement, the contents of the victim’s photograph and the diagnosis report, etc., it may be recognized that the above victim was injured in the course of arresting the Defendants.

C) Defendant 3’s obstruction of performance of official duties on August 21, 2013

The establishment of a line of order keeping by Nonindicted 1 and the placement of police troops by the chief of the Seodaemun Police Station shall be deemed legitimate execution of duties, and the use of minimum physical force by Nonindicted 3 in order to restrain Nonindicted 2 by police officers should be deemed legitimate execution of duties.

2) Unreasonable sentencing

The sentence imposed by the court below against the defendants is too uneasible and unfair.

2. Basic facts

The record reveals the following facts.

(a) The developments leading up to the creation of the △△△ Group;

1) On February 4, 2012, Non-Indicted 4 Co., Ltd. (hereinafter “△△ Group”) began the rehabilitation procedure around February 2, 2009, and thereafter, the conflict between labor and management was continued, such as the strike and punishment on whether to be dismissed. On March 30, 2012, when the number of labor and management members, etc. who were killed or committed suicide during the process of the △△△ Group’s implementation of the △△ Group’s implementation of the △ Group’s △ Group, including Nonindicted 5’s suicides against his wife, etc., the number of labor and management members, etc. who were killed or committed suicide, was caused to 22 persons. On April 5, 2012, the △△△ Group, which was affiliated with the said Trade Union, demanded the withdrawal of the layoff and the punishment of △△ Group management, etc. on the Internet homepage around April 4, 2012.

2) After that, around April 13, 2012, the △△△△△, Nonindicted Corporation 8, and Nonindicted Corporation 9 (hereinafter “○○○”) were organized with the national commemoration committee for the pan-national group of the △△△ (hereinafter “○○”) in which the △△△△△, Nonindicted Corporation 8, and Nonindicted Corporation 9 (hereinafter “○○”), etc. participated, which expanded into the National Assembly held on May 19, 2012, on the ground of the national competition held around May 19, 2012, the National Assembly for the trend of the △△△ victims and the reinstatement of the dismissed. The △△△△△△ Party and the Countermeasures Committee set up an assembly and demonstration on the front of the △△△△△△△△△△△△, etc., and demanded the enactment, investigation, etc. of the Special Act on the Countermeasures against the Suppression of △△△.

3) Around May 24, 2012, the head of the Seoul Central District Government removed two tents installed on the front of the △△△△△△, following the process of administrative vicarious execution, the △△△ Party re-established two tents immediately thereafter, and additionally installed one tent around November 3, 2012. After that, on March 3, 2013, the said three tents were all destroyed due to the fire prevention of the elderly, and the said three tents were all destroyed by the fire prevention of the elderly.

4) On March 6, 2013, the Administrator of the Cultural Heritage Administration: (a) requested the head of Seoul Central District Office to “in order to prevent any damage to the historical and cultural environment and protect cultural heritage from fire, etc., by creating a chemical force in an area where illegal facilities are likely to be installed, such as an area where the △△△△△△△△△△, etc. are located, thereby blocking the installation of illegal facilities and an assembly or demonstration at source; and (b) on the same day, requested the head of the Nam-gu Police Station to increase the security manpower to prevent any assembly or demonstration from becoming long-term and to strengthen the boundaries, on the grounds that there is a concern over the damage of cultural heritage

5) Accordingly, on April 4, 2013, the head of the Seoul Central District Office removed a 1 week installed on the front of the △△△△△△ (hereinafter “instant chemical group”) and created a chemical group on the same place (hereinafter “instant chemical group”). The Seoul Central Police Agency and the Seoul Southern Police Station have, at the time of the creation of the instant chemical group, had police officers work in the vicinity of △△△△△△ on an average of 300 per day from April 4, 2013, when the instant chemical group was created, and have police officers work in the vicinity of the instant chemical group, and have continued to guard the instant chemical group by having police officers work in shift in the vicinity of the instant chemical group.

(b) Reporting on an assembly by the ○○ Labor Relations Commission and reporting on restriction by the chief of another police station;

1) From April 4, 2013, from around 1, 2013, △△△△△ was continued to hold a meeting to remove a tent before the instant order and to create the instant chemical group. On May 29, 2013, the physical conflict occurred in the process that the police officers, who were the participants of the assembly, were suffering from the banner of the instant chemical group at the meeting held before △△△△△△△△△△△△△△△, and the police officers attempted to interfere with it by entering the place of the assembly. As such, from May 30, 2013, the head of the South Seodaemun-gu Police Station began to give a notice of prohibition on the report of the △△△△△△△△△△△△△△△△△△△△ on the countermeasures against the instant prohibition. However, the said court dismissed the application for suspension of execution on June 18, 2013.

2) According to the foregoing prohibition notice, the front assembly of △△△△△△△ Group was prohibited, and Nonindicted Corporation 10 reported on June 19, 2013 the assembly of the name of “civil campaign to find out the right to assembly and demonstration”, and on June 21, 2013, the head of the South Seodaemun-gu Police Station reported on June 21, 2013 the prohibition notice on the ground that the above assembly was in fact identical with the report of the assembly of △△△△△△△△△△△△.

3) On July 6, 2013, the Labor Relations Commission reported on the assembly (receiving number omitted) of the following to the chief of the Nam-gu Police Station.

본문내 포함된 표 [2013. 7. 6.자 집회신고서(생략)] ○ 명칭: 집회 통제를 위한 화단설치의 위법성 규탄과 집회의 자유 회복을 위한 시민강연 및 집회 ○ 개최목적: 공소외 4 회사 희생자 분향소 설치를 금지하기 위하여 설치된 △△△ 앞 화단 조성의 위법성과 경찰력의 남용으로 인해 집회의 자유가 침해되는 현실을 시민들에게 강연 및 집회의 형식으로 알리기 위함 ○ 개최일시: 2013. 7. 11. (목) ~ 7. 22.(월) *일요일 제외 2013. 7. 24. (수) ~ 7. 26. (금) 각 일의 17:00~21:00 ○ 개최장소: 매표소가 있는 돌담이 꺾이는 부분으로부터 ◎◎◎ 방향으로 지하철◁, ▷호선 ♤♤역 원형 엘리베이터 지상 탑승구까지의 인도(화단 안은 제외) (별지 도면 참조) ○ 주최자, 주관자: ○○ 노동위원회 (위원장 공소외 2) ○ 질서유지인: 공소외 11, 공소외 12, 공소외 13 ○ 참가예정단체: ○○ 등 다수의 시민단체, 노동단체 ○ 참가 예정 인원: 30여 명

4) On July 10, 2013, the chief of the South Seodaemun-gu Police Station notified the assembly report on the above (receiving number omitted) assembly to the effect that “the reported place constitutes a major road under the Assembly and Demonstration Act, and the width of India is very narrow due to the instant chemical group, and there is a concern that direct danger to surrounding traffic flow may be caused by large congestion of visitors, crosswalk visitors, and visitors, etc.” on the grounds that “the assembly shall be held in India before the right-hand side (the right-hand side) other than the front of the instant chemical group,” on the grounds that “the reported place constitutes a major road under the Assembly and Demonstration Act.”

5) On July 11, 2013, the ○○ Labor Relations Commission withdrawn the report of the above assembly on the same day, and re-reported the report of the assembly (the receipt number omitted; hereinafter “the report of the assembly of this case”) as follows. The main contents of the attached drawing attached to the report of the assembly are as shown in attached Form 1.

본문내 포함된 표 [2013. 7. 11.자 집회신고서(생략)] ○ 명칭: 집회를 원천봉쇄하기 위한 화단 설치 규탄 및 위법한 경찰권 남용으로 집회 금지 구역이 되어버린 화단 앞과 옆 장소에서의 집회의 자유 확인을 위한 집회 ○ 개최목적: 경찰력의 남용으로 인해 집회금지장소가 된 화단 옆과 앞의 장소(아래 집회신고장소)도 집회의 자유가 있는 민주공화국의 자유로운 공간임을 확인하고, 이를 시민들에게 보여주며, 공소외 4 회사 희생자 분향소 설치를 금지하기 위하여 설치된 △△△ 앞 화단 조성의 위법성을 평화로운 방법인 집회와 강연을 통해 알리기 위함임 ○ 개최일시: 2013. 7. 15. (월) ~ 7. 22. (월) * 토요일과 일요일 제외 2013. 7. 24. (수) ~ 7. 26. (금) 각 일의 17:00~21:00 ○ 개최장소: 매표소가 있는 돌담이 꺾이는 부분으로부터 ◎◎◎ 방향으로 지하철◁, ▷호선 ♤♤역 원형 엘리베이터 지상 탑승구까지의 인도 중 화단 경계로부터 폭 1.5m 부분. 단, △△△ 정문 쪽은 폭 3m (별지 도면 참조) ○ 주최자, 주관자: ○○ 노동위원회 (위원장 공소외 2) ○ 참가예정단체: ○○ 등 다수의 시민단체, 노동단체 ○ 참가 예정 인원: 30여 명 ○ 질서유지인: 공소외 11, 공소외 12, 공소외 13

6) 남대문경찰서장은 2013. 7. 12. 이 사건 집회신고에 대하여 “신고한 집회장소는 집시법상 주요 도로에 해당하고, 이 사건 화단 등으로 인해 주변 인도 폭이 매우 협소하며, 평소 ▽▽▽ 관람객, 횡단보도 이용 시민, 일반 통행인 등이 많아 매우 혼잡하다.”는 이유를 들어 “집회로 인한 주변 교통소통에 직접적인 위험이 초래될 우려가 있는 ◎◎◎ 방향 지하철 ◁, ▷호선 ♤♤역 원형 엘리베이터 지상탑승구까지 구간은 제외하고, △△△ 정문 쪽(화단 우측, ◎◎◎과 반대 방향) 인도에서 개최하여야 한다.”는 내용의 집시법 제12조 에 기한 교통질서 유지를 위한 조건통보(이하 ‘이 사건 집회제한처분’이라 한다)를 하였다.

7) Accordingly, on July 15, 2013, the Seoul Administrative Court 2013Guhap18315 filed a revocation lawsuit against the instant assembly restriction disposition, and at the same time filed an application for suspension of execution with the same court 2013Ga2286. The Seoul Administrative Court, following a hearing, rendered a decision to suspend the validity of the instant assembly restriction disposition until the original draft judgment is declared (hereinafter “decision to suspend execution of the instant case”).

(c) Holding each assembly on July 24, 2013 and on the 25th day of the same month;

1) On July 22, 2013, the chief of the South Seodaemun-gu Police Station, where a decision to suspend the execution of the instant case was made, decided to set up a line for order keeping under Article 13 of the Assembly and Demonstration Act, and prepared a notice on the establishment of the line for order keeping (No. 73). According to the aforementioned notice on the establishment of the line for order keeping (No. 73), the form of the line for order keeping is “induce, unmanned P/L, roadway, and India boundary,” and the specific form of the line for order keeping was revealed through pictures, such as the photo as shown in attached Form 2, attached to the back.

2) Before the assembly of the Labor Relations Commission on July 24, 2013, the police officers of the Seodaemun Police Station set up a yellow plastic structure at intervals of a certain distance from the boundary of the instant chemical group, and set up two-meters at the boundary of the chemical group and plastic polys, thereby forming a line of order in the form described in attached Form 2. 3. As a result, the interval between the police officers and the police officers out of approximately approximately 2.8 meters away from the boundary of the instant chemical group, which is the place of assembly in accordance with the instant assembly report, to the relocation of the yellow block, and the interval between the remainder of the space except for the space occupied by a plastic polys and the police officers.

3) On July 24, 2013, at around 17:00, the intelligence officers belonging to the Southern Police Station intended to deliver the notice of setting up the order line to Nonindicted 2, the chairperson of the ○○ Labor Relations Commission, as of July 22, 2013. However, Nonindicted 2 refused to receive it by asserting that the installation of the order line by the police was illegal. Meanwhile, the attorneys affiliated with the ○○○○○ was against the instant decision to suspend the execution, and the posting of Plastas and police officers to Nonindicted 1, the director of the security station of Seodaemun-gu Police Station, who was dispatched to the site from around that time to 17:10, the aforementioned arrangement of Plastas and police officers was in conflict with the instant decision to restrict the place of assembly. However, Nonindicted 1 refused to hold the assembly of Plastas separately from the instant decision to suspend the execution, on the ground that the posting of Plastas and police officers was lawfully installed in accordance with Article 13 of the Assembly Act and Article 13 of the Enforcement Decree of the Assembly Act.

4) On July 24, 2013, 201, the ○○ Labor Relations Commission filed an application for emergency remedy with the National Human Rights Commission of Korea to the effect that “The Republic of Korea set up a line for order at the place of assembly reported by the chief of the South-west Police Station and violated the freedom of assembly and demonstration by interfering with the assembly by interfering with the police power.” On July 25, 2013, the National Human Rights Commission rendered a decision on emergency remedy with the purport that “If it is practically difficult to hold an assembly and demonstration reported due to the narrow possession of a part of the place of assembly reported by the South-west Police Station, this would result in a violation of the suspension of execution of this case’s order.”

5) On July 25, 2013, the chief of the South Seodaemun-gu Police Station decided to re-establish a line for maintenance of order pursuant to Article 13 of the Assembly and Demonstration Act, and prepared a notification of the establishment of a line for maintenance of order (No. 75). According to the aforementioned notification of the establishment of a line for maintenance of order (No. 75), the form of a line for maintenance of order is “induction, unmanned P/L, roadway and India boundary,” and the form of a line for maintenance of order was “induction, unmanned P/L, and India boundary,” and the detailed form of a line

6) Before the assembly of the Labor Relations Commission was held on July 25, 2013, the police officers of the Seodaemun Police Station set up one heat in the space between the boundary of the chemical group of this case and plastic polysate at a certain interval from the boundary of the chemical group of this case before the assembly of ○○○ Labor Relations Commission, and set up a maintenance line in the same form as the attached Form 3 (hereinafter “Maintenance line”). Accordingly, the interval between the space, other than the space occupied by plastic polys and police officers, remains approximately 1.5 meters from the boundary of the chemical group of this case, which is the place of assembly as a result of the assembly report of this case, from the location of the assembly of this case, to the location of the yellow block of about 2.8 meters, the interval between the remaining space, other than the space occupied by plastic polys and police officers, remains.

7) 남대문경찰서 소속 정보관은 2013. 7. 25. 17:25경 피고인 2에게 위 2013. 7. 25.자 질서유지선 설정고지서를 전달하려 하였으나, 피고인 2는 그 수령을 거부하였다. 그 후 ○○ 소속 변호사들을 비롯한 집회참가자들은 17:30경 피고인 2의 사회 아래 집회(이하 ‘이 사건 집회’라 한다)를 시작하였는데, 피고인 2는 사회를 보는 과정에서도 계속해서 이 사건 질서유지선의 철거 및 경찰관들의 철수를 요구하였고, 집회참가자들도 이에 동조하였다. 이 사건 집회가 시작된 이후 ◇◇◇◇ 부위원장의 인사말과 ♡♡대학교 교수 공소외 14의 강연이 이어졌고, 위 강연이 있은 이후에는 가수 공소외 15의 노래공연이 시작되었다. 가수 공소외 15의 노래공연이 진행되던 도중인 17:45경 집회참가자들 중 일부가 노란색 점자블록 바깥에 배치된 플라스틱 폴리스라인 앞쪽에 서서 “집회 통제를 위한 화단 설치의 위법성 규탄과 집회의 자유 회복을 위한 법률가 시민 한마당”이라고 기재된 현수막을 펼쳐 들자, 공소외 1은 현수막 쪽으로 다가간 다음 현수막을 들고 있던 집회참자가들에게 집회장소를 벗어났으니 안쪽으로 이동할 것을 요구하였다.

Accordingly, Defendant 2 resisted to the purport that “I will come out of the police in the assembly place,” etc. Defendant 2 followed the legitimacy of the order keeping line of this case between the Defendants, including the participants in the assembly, and Nonindicted Party 1. As such, the Defendants and Nonindicted Party 1 followed Defendant 3, “I am arrested as an offender in the act of committing the crime of arrest, threat, and mind.” While Nonindicted Party 1 took the phrase “I am arrested, I would see”, “I would arrest the Defendants,” “I will am on board, interfere with the crime of abuse of authority, and arrest by assembly, I would like to attract approximately 6 to 7 meters to the front of △△△△△ by driving on or pushing ahead of Nonindicted Party 1’s arm's body, and led Nonindicted Party 1 and Nonindicted Party 1 to stop at the assembly, and led Nonindicted Party 1 and Nonindicted Party 1 again to his order to stop at the seat of △△△△△△△.

D. The holding, etc. of ○○-based assemblies on August 21, 2013

1) On August 2, 2013, ○○ filed a report on the assembly (receiving number omitted) with the chief of the South Seodaemun Police Station on August 2, 2013 as follows.

본문내 포함된 표 [2013. 8. 2.자 집회신고서] ○ 명칭: 집회를 원천 봉쇄하기 위한 화단 설치 규탄 및 위법한 경찰권 행사로 집회 금지 구역이 되어버린 화단 앞과 옆 장소에서의 집회의 자유 확인을 위한 시민캠페인 ○ 개최목적: 경찰력의 남용으로 인해 집회 금지 장소가 되어버린 △△△ 화단 앞과 옆 장소도 집회의 자유가 있는 민주국가의 자유로운 공간임을 확인하고 이를 시민들에게 보여주며, 집회를 차단할 목적으로 설치된 △△△ 앞 화단 조성의 위법성을 시민강연과 집회 등 평화로운 방법으로 알리기 위함. ○ 개최일시: (1) 2013. 8. 6. (화) (2) 2013. 8. 13. (화) (3) 2013. 8. 16. (금) (4) 2013. 8. 19. (월) ~ 8. 24. (토) * 개최 시간은 각 일의 17:00~21:00 ○ 개최장소: 매표소가 있는 돌담이 꺾이는 부분으로부터 ◎◎◎ 방향으로 지하철◁, ▷호선 ♤♤역 원형 엘리베이터 지상 탑승구까지의 인도 중 화단 경계선부터 노란색 시각장애인 점자 블록까지의 구역. 단, △△△ 정문 쪽은 폭 약 3m가량 (별지 도면 참조) ○ 주최자: 1) ○○ 2) 공소외 16 법인 ○ 참가예정단체: ○○, 공소외 16 법인 등 법률가단체, 시민단체, 노동단체 등 ○ 참가 예정 인원: 50여 명 ○ 질서유지인: 공소외 11, 공소외 12, 공소외 13, 공소외 17, 공소외 18, 공소외 19, 피고인 4, 피고인 1, 공소외 20

2) On August 21, 2013, the chief of the South Seodaemun-gu Police Station decided to set up a line for the maintenance of order pursuant to Article 13 of the Assembly and Demonstration Act, and prepared a notice of the establishment of the line for the maintenance of order (No. 86). According to the above notice of the establishment of the line for the maintenance of order (No. 86), the form of the line for the maintenance of order is “induc and unmanned P/L”; however, the specific form of the line for the maintenance of order was revealed through photographs, such as pictures attached to the back.

3) On August 21, 2013, prior to the assembly of ○○, the chief of the South Seodaemun Police Station set up a maintenance line in the form of setting up a male police officer at a single rank at the space between the boundaries of the instant chemical group and plastic polys and setting up a maintenance line in order to guard the instant chemical at a single rank. The space occupied by the maintenance line installed as above was about 0.6 meters from the boundary of the instant chemical group. The male police officer, who was posted as above prior to the scheduled time of the assembly, was replaced by the female police officer.

4) The participants of the assembly, including the attorneys-at-law belonging to ○○○, held an assembly from 17:25 to 17:49. At around 17:49, Nonindicted Party 2 told the participants in the assembly to the effect that the police is obstructing the assembly by installing illegal order keeping lines, and the assembly continued to proceed with the assembly after having the participants leave plastic polys together with the participants in the assembly, and allowing the participants to leave the assembly between the front female police officers at the right time prior to the bar system of this case.

5) At around 18:30, while the assembly was in progress, the 18:30 square, which was held every day in front of the △△△△, the participants in the assembly suspended the assembly at a time and took a rest before the chemical of this case. During that process, some participants were present between the police officers in front of the instant chemical of this case at the time when the assembly was stopped.

6) At around 18:45, Nonindicted Party 1 instructed female police officers to install order straw belts. Nonindicted Party 1 did not notify this to the organizer of the assembly, such as ○○, etc. of the establishment of polyslass. According to the foregoing order, at the time of viewing the chemical team of this case, it was sent to female police officers who were first on the right side, and female police officers began to build order line by cutting down this and cutting down order line. As such, Nonindicted Party 2 and some participants of the assembly began to have a studle to cut off female police officers’ belts, Nonindicted Party 2 and Nonindicted Party 2 did not capture Nonindicted Party 1 to the scene, and Nonindicted Party 2 and Nonindicted Party 3 did not capture Nonindicted Party 2’s face to prevent physical conflict between the participants of the assembly, and Nonindicted Party 2 and Nonindicted Party 3 from spreading the front part of Nonindicted Party 2’s face in the process of arresting Nonindicted Party 2, etc., and Nonindicted Party 2 and the participants of the assembly.

3. Judgment on the misunderstanding of facts or misapprehension of legal principles by the defendants - attempted arrest.

A. As to whether the elements of a crime are satisfied

1) Determination as to the existence and intention of arrest

“Arrest” as referred to in the crime of arrest under Article 276(1) of the Criminal Act refers to an act of depriving a person of his/her physical freedom by imposing direct and realistic restraint on a person’s body, regardless of the means and method thereof. The commencement time of the commission of the crime of arrest refers to the commencement of an act infringing another person’s physical freedom by intent of arrest. The commencement time of the commission of the crime of arrest refers to the time when the act of infringing another person’s physical freedom is practically infringed upon the freedom of physical activity. Meanwhile, whether a temporary physical restraint constitutes an act of violence or an attempted arrest is determined by considering not only the objective attitude of the act but also the situation leading to

Examining the following circumstances based on the evidence duly adopted and examined by the court below and the court below in light of the legal principles as seen earlier, it is reasonable to view that the Defendants commenced the crime of arrest by starting the act of infringing on the victim non-indicted 1 (hereinafter "victim")'s physical freedom on July 25, 2013, and the Defendants were deemed to have attempted to arrest the victim. The judgment below is just, and there is no error of misapprehending the facts or by misapprehending the legal principles, thereby affecting the conclusion of the judgment. The Defendants' assertion in this part is without merit.

The Defendants: (a) led the victim from the place of assembly of this case to the direction of △△△△ by means of cutting the victim’s arms or getting off the victim’s arms; (b) the victim appears to have been in a state where the victims, including the Defendants, were in a state of putting the victim’s body part to the participants in assembly, including the Defendants, until the victim and other police officers escape from the Defendants.

The Defendants, at the time, told the victim to the effect that “the victim was arrested as an offender of the crime of interference with assembly and abuse of authority,” leading the victim, as well as acting as an intent to arrest the victim by notifying the victim of the victim of the principle of disturbing the victim. The participants in the assembly in the vicinity are also deemed to have been aware that the Defendants intended to arrest the victim. In light of such circumstances and the Defendants’ subjective intent, the Defendants’ act cannot be deemed as a mere assault act.

2) Whether the victim consented, etc.

In light of the following circumstances, which can be recognized by the court below and the court below's duly adopted and investigated evidence, the victim cannot be deemed to have consented explicitly or implicitly to the arrest act of the defendants, and the defendants cannot be deemed to have committed an arrest act merely with the consent of the victim. The judgment below to the same purport is just, and there is no error of law by misconception of facts or by misunderstanding of legal principles, which affected the conclusion of the judgment. This part of the defendants' assertion is without merit.

The victim seems to have moved to the direction of the delivery in front of the △△△△ as he gets sold or pushed away by the Defendants, and does not seem to have moved voluntarily.

Before exercising the force of force against the Defendants, the Defendants told the Defendants that “the victim was satisfy in the manner of arrest.” However, this is merely a satching that the victim would be punished for the lawfulness of the order keeping line of this case between the Defendants and the Defendants, and it does not seem to have been done within the meaning of consenting to the arrest of the Defendants.

While the victim led the Defendants, the victim repeatedly led the other police officers to the instructions, which can be seen as clearly showing the victim’s perception that the Defendants’ act constituted “an unlawful act that does not consent to the victim.” The Defendants continued to attract the other police officers with the victim’s arms under the circumstances where the victim repeatedly followed the other police officers’ instructions.

B. Regarding the illegality

1) Whether an act under statutes (Arrest of flagrant offenders) constitutes a justifiable act

A) Whether it is evident whether the victim committed a crime of violation of the Assembly and Demonstration Act or of abuse of authority

As arrest and detention brings a serious restriction on the freedom of individuals, the Constitution and the Criminal Procedure Act require arrest and detention in accordance with a warrant issued by a judge in principle. However, in the case of arrest of flagrant offenders, such a warrant is not required, and furthermore, the subject of arrest is expanding not only the investigation agency but also the general public. This is because, in the case of arrest of flagrant offenders, the degree of suspicion is limited, but also in the case of arrest of flagrant offenders, the risk of abuse of authority is limited. Therefore, in order to be recognized as lawful arrest of flagrant offenders, it is clear that the arrested flagrant offender has committed a crime first.

In this case, the Defendants attempted to arrest the victim as an offender of the crime of violation of the Act (Articles 3(1) and 21(1) of the Act) or abuse of authority (Article 123 of the Criminal Act). However, in light of the following circumstances, it is difficult to view that the victim is obviously a crime of violation of the Act or of abuse of authority.

Article 3(1) of the Assembly and Demonstration Act provides, “No person shall interfere with or disturb the order of a peaceful assembly or demonstration by means of violence, intimidation or other means.” Article 22(1) of the same Act provides, “Any person who violates Article 3(1) shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding three million won: Provided, That a soldier, prosecutor, or police officer violates Article 3(1) shall be punished by imprisonment with prison labor for not more than five years: Provided, That a soldier, or police officer shall be punished by imprisonment with prison labor for not more than three years.” “Assault or intimidation” under Article 3(1) of the same Act refers to an act of directly or indirectly notifying a person of harm that may directly or indirectly cause a person to feel out of the society, and “other means” refers to any act that interferes with an assembly or demonstration or disturbs the order, and “an act corresponding to violence or intimidation.”

However, at the time of the Defendants’ attempt to arrest the victim, police officers, including the victim, do not have any assault or intimidation against the participants in assemblies including the Defendants. Meanwhile, even if police officers, including the victim continued to possess a part of the assembly place while maintaining the order keeping line set up within the assembly place, it is difficult to readily conclude that such act constitutes assault or intimidation.

In accordance with Article 13 of the Assembly and Demonstration Act, the chief of the South Seodaemun Police Station set up the order keeping line in this case, and the victim, the chief of the security station in the South Seodaemun Police Station, was in order keeping order by leading police officers at the site of the assembly. Although it was found that the order keeping line in this case was illegal ex post, it is difficult to view that it constitutes abuse of authority under Article 123 of the Criminal Act due to the act committed by the chief of the security department, who is the field manager

B) Whether there is a need to arrest the victim as a flagrant offender

Any person may arrest a flagrant offender without a warrant. To arrest a flagrant offender as a flagrant offender, there is a need to arrest, i.e., the necessity of the arrest, i., the necessity of escape or destruction of evidence, in addition to the punishment of the act, the current and time contact of the crime, and the apparentness of the offender and the crime (see Supreme Court Decision 201Do3682, May 26, 201). The same applies to cases where a private person arrests a flagrant offender (see Supreme Court Decision 98Do3029, Jan. 26, 199).

In light of the following circumstances, it cannot be deemed that the victim might flee or destroy evidence, and thus, it cannot be deemed that there was a need to arrest the victim as an offender in the act of committing an offense.

The victim, as a police officer, was in charge of the duties of the chief of the security guard station in Seodaemun Police Station. From April 2012 to April 1, 2012, the victim continued to take charge of on-site command and security services in front of △△△△. On the day of the instant case, the victim was carrying out the duty of maintaining order by leading police officers dispatched to the scene of the instant assembly, but the victim’s status, role, etc. was well known to

A series of assemblies held in front of △△△△, including the site of the instant assembly, have been taken by police as well as participants (in the process of the instant trial, prosecutor and the Defendants submitted as evidence a number of video images recorded at the site of the instant assembly). In addition, at the instant assembly site, there were many persons, including participants in the assembly and police officers, and the victim and the Defendants had been present in a series of circumstances that have been punished by the victim and the Defendants immediately next to the assembly site of this case. For this reason, it was difficult for any one to present from the beginning to the point where it was difficult for the first time to destroy evidence for those days during the instant assembly site of this case.

C) Sub-decision

When the Defendants attempted to arrest the victim, it cannot be deemed that the victim was committed a crime of violation of the Act or abuse of authority, and there is no need to arrest the victim as an offender in the act of committing an offense. Therefore, the act of the Defendants seeking to arrest the victim does not constitute a justifiable act as an act under the Acts and subordinate statutes (the arrest of the victim in the act of committing an offense). The judgment of the court below to the same purport is justifiable, and there is no error of law affecting the conclusion of the judgment by misunderstanding the facts or

2) Whether it constitutes a legitimate act that does not contravene social rules

A) "Act which does not violate the social rules" under Article 20 of the Criminal Act refers to an act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Whether certain act is a legitimate act that does not violate the social norms and thus, the illegality should be avoided, based on specific circumstances, and should be determined individually by considering the motive or purpose of the act, the reasonableness of the means or method of the act, the balance between the third protected interest and infringed interest, the fourth urgency, and the fifth supplementary nature that there is no other means or method (see, e.g., Supreme Court Decisions 2003Do300, Sept. 26, 2003; 2006Do9307, Mar. 29, 2007).

B) Examining the following circumstances based on the evidence duly adopted and examined by the court below and the court below in light of the legal principles as seen earlier, even if police officers including the victim were to have attempted to dismiss the order keeping line of this case, and the Defendants attempted to arrest the victim to oppose this order, the Defendants’ act of arresting the victim, who was a field manager who led police officers, was in charge of the duty to maintain order, cannot be deemed reasonable in the means and method, and it cannot be deemed that urgent and inevitable measures were taken. Thus, this cannot be deemed as a justifiable act that does not violate social norms. The court below’s judgment to the same purport is just, and it is not erroneous in the misapprehension of facts or by misapprehending the legal principles, thereby affecting the conclusion of the judgment. The Defendants’ assertion on this part is without merit.

The order keeping line of this case is established in violation of the provisions of the Assembly and Demonstration Act, and it is illegal as it does not meet the requirements of an immediate administrative enforcement. However, it is difficult to view that such illegality is ex post facto, and it is obvious that the order keeping line of this case was illegal at the time of the instant case (the fact that the victim’s act of performing official duties is illegal). This is supported by the following circumstances.

Article 12 subparag. 7 of the Assembly and Demonstration Act and Article 13 subparag. 8 of the Assembly and Demonstration Act respectively are separate administrative dispositions, and their basis provisions are different. Accordingly, the restriction on assembly of this case was a disposition under Article 12 of the Assembly and Demonstration Act that completely restricts assemblies on the front side of the chemical group of this case. While the restriction on assembly of this case was a disposition under Article 12 of the Assembly and Demonstration Act, the establishment of the order keeping line was a disposition under Article 13 of the Assembly and Demonstration Act, which partially limits assemblies on the front side of the chemical group of this case. Meanwhile, police officers, including the victim, etc., took measures so that the police officers, who were placed front of the chemical group of this case, can secure more at the meeting place by reducing the police officers who were put in front of the chemical group of this case from 2 to 1st order after the National Human Rights Commission on emergency relief. Therefore, it is difficult to conclude that the restriction on assembly of this case goes against the order to suspend the execution of the administrative court or the order to suspend execution.

It seems that there was no authoritative interpretation or established precedent that the establishment of the order keeping line within the assembly place was unlawful before the time of the instant case. Moreover, it seems that there was no precedent on whether the so-called “order keeping line” is permissible as one type of the order keeping line, whether the police officer took possession of part of the assembly place with the strong resistance inside the assembly place constitutes a violation of the Assembly and Demonstration Act. Rather, in the first line police, the “order keeping line” is naturally allowed and it is possible to partially restrict the assembly place through the establishment of the order keeping line, it appears that the police officer performed the duty of maintaining order at the assembly site.

The Defendants tried to arrest the victim as an offender in the crime of violation of the Assembly and Demonstration Act or abuse of authority, upon the occurrence of disagreement between the Defendants and the victim regarding the illegality of the order keeping line of this case. However, in light of the fact that the assembly took place prior to the occurrence of this case, such as the statement of the participants in the assembly and the series of singing performances, etc., prior to the occurrence of this case, there is no urgent circumstance to the extent that the Defendants were arrested the victim as an offender in the act of committing a crime. Rather, according to the above facts, the Defendants and the victim continued to dispute over the maintenance of the order keeping line of this case, and were the direct opportunity to directly respond to the issue of installing banner.

The Constitution guarantees the freedom of assembly as one of the fundamental rights, but such freedom of assembly does not be free in the restriction under Article 37(2) of the Constitution. The Assembly and Demonstration Act, along with various provisions guaranteeing the freedom of assembly, has various provisions that restrict the freedom of assembly for public welfare and maintenance of order. One of the core contents of such restriction provisions is the duty of cooperation between the organizer and the participant in the assembly. The Assembly and Demonstration Act requires the person who seeks to hold an outdoor assembly or demonstration to report as part of such duty of cooperation (Article 6 of the Assembly and Demonstration Act) and requires the person who wants to hold an outdoor assembly or demonstration to cooperate in the performance of duties by police officers to maintain order (Article 19(2) of the Assembly and Demonstration Act). In this case, the Defendants attempted to arrest a victim, who was a field manager in charge of maintaining order at the site of the assembly in this case, who was taking care of police officers at the site of the assembly in this case, as follows: although the victim’s performance of duties is unlawful, it does not fit the purpose of the Assembly and Demonstration Act’s order and order.

3) Whether the act constitutes self-defense

In order to establish self-defense under Article 21 of the Criminal Act, the act of defense must be socially reasonable, taking into account all specific circumstances, such as the type, degree, and method of infringement of the legal interest infringed by the act of infringement, the complete completion of the act of infringement, and the type and degree of the legal interest to be infringed by the act of defense (see Supreme Court Decisions 92Do2540, Dec. 22, 1992; 2006Do9307, Mar. 29, 2007, etc.).

In light of the above various circumstances, since the defendants' act of arresting the victim cannot be deemed to have been socially significant, the defendants' act cannot be deemed to constitute self-defense. The judgment below is just and the judgment below did not err by misapprehending the facts or by misapprehending the legal principles, thereby affecting the conclusion of the judgment. The defendants' assertion on this part is without merit.

C. As to the liability

1) Whether it constitutes an error in law

A) Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the law shall not be punishable only when there are justifiable grounds for misunderstanding. However, it is generally accepted that his act constitutes a crime, but in his own special circumstances, it does not constitute a crime under the law, and if there are justifiable grounds for misunderstanding. Whether there exists justifiable grounds or not should be determined depending on whether the actor failed to recognize the illegality of his act as a result of his failure, even though there was a possibility of recognizing the illegality of his act, and the degree of efforts necessary for recognizing the illegality should be determined differently according to the social group to which the actor belongs (see Supreme Court Decision 2005Do3717, Mar. 24, 2006).

B) In full view of the following circumstances that can be recognized by the lower court and the first instance court’s duly adopted and investigated evidence, even if the Defendants perceived that their own act was not a crime, there is no justifiable reason to believe that there was a mistake. Therefore, Article 16 of the Criminal Act cannot be applied to the Defendants’ act. The lower court is justifiable. In so determining, the lower court did not err by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment. The Defendants’ assertion on this part is without merit.

Although the Defendants asserted the illegality of the order keeping vessel of this case on the ground of the decision to suspend the validity of the assembly restriction disposition of this case, the disposition to restrict the assembly of this case and the disposition to set up the order keeping vessel of this case are separate administrative dispositions and are different from the relevant statutes, requirements and effects.

The Defendants attempted to arrest the victim as an offender in the act of committing an offense but it was not clear that the victim committed any crime. In addition, in light of the situation at the time, there was no concern that the victim would flee or destroy evidence, and thus, the need to arrest the victim as an offender was not recognized.

The Defendants, as attorneys-at-law who are legal experts, could have sufficiently known that there were problems as seen earlier if they had made a serious effort to avoid illegal acts. In particular, even if they have paid considerable attention to the fact that the need to arrest the victims as flagrant offenders is not recognized, they could have sufficiently known. Nevertheless, the Defendants seems to have been able to respond to the conflict with the victims about the legitimacy of the order keeping line in this case.

2) Whether it constitutes an error as to the premise facts for the exclusion of illegality

The lower court determined that the Defendants did not mislead the facts in the course of arresting the victims, and thus did not constitute a mistake of the facts constituting the grounds for the dismissal of illegality.

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just, and there is no error of law by misunderstanding facts or by misapprehending the legal principles, which affected the conclusion of the judgment. The defendants' assertion

4. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principles

A. The Defendants’ obstruction of performance of official duties on July 25, 2013

1) Determination as to whether the maintenance line of order in this case is legitimate

A) Whether it is legitimate as a maintenance line under the Assembly and Demonstration Act

(1) The meaning and importance of the place of assembly in the freedom of assembly

The freedom of assembly shall guarantee the right to decide on the time, place, method, and purpose of assembly. Major acts specifically protected by the freedom of assembly are the preparation and organization of assembly, direction, participation, and selection of the place and time of assembly. Among them, the place of assembly has a special symbolic meaning. Among them, there are frequent cases where a certain place is selected as a demonstration place because there is a special relationship with the purpose of demonstration. Generally, there is an expression of opinion in the place of assembly (e.g., a government office building that has issued the decision of problem) where the object of assembly is located or where the object of assembly is provided (e.g., nuclear power plant, waste incineration station, etc.) or the opportunity for demonstration (e., a government office building that has issued the decision of problem). In other words, since the purpose and contents of assembly are generally related closely, there is a lot of cases where the selection of the place of assembly is decided on the result of assembly. If an assembly is decided on the place that does not receive the attention of three persons by state power or the opinion expressed in assembly, it is essential to effectively protect the freedom of assembly.

(2) The place of assembly and the relation between the maintenance line, etc.

(A) Whether it is possible to set up a maintenance line within the place of assembly

In addition to the circumstances leading up to the amendment of the Assembly and Demonstration Act and the importance of the place of assembly in relation to freedom of assembly, setting a line for maintenance of order under Article 13 of the Assembly and Demonstration Act is not allowed. Therefore, limiting the place of assembly by setting up a line for maintenance of order in the assembly place is in violation of the relevant provisions of the Assembly and Demonstration Act, and its legality cannot be recognized.

The maintenance line of order under the Assembly and Demonstration Act was first introduced upon the amendment by Act No. 5985 on May 24, 199. According to the above amendment, Article 2 subparag. 5, Article 12-2, and Article 21 subparag. 4 (current Article 2 subparag. 5, Article 13, and Article 24 subparag. 3) of the Assembly and Demonstration Act was newly established. In relation to the amendment of the Assembly and Demonstration Act, the bill submitted by Nonindicted 23 members, etc. in relation to the amendment of the Assembly and Demonstration Act, states that “a basis provision for establishing a police protection line “in the outside side of the assembly or demonstration place or the zone where the assembly or demonstration is carried out” (Article 12-2).

Article 2 Subparag. 5 of the Assembly and Demonstration Act provides that “The boundary signs, such as belts, fences, lines, etc. set up by clearly dividing the place or stage of an assembly or demonstration as a line for maintenance of order.” Even according to such language and text, the line for maintenance of order is required to function as a boundary sign dividing the place or place of an assembly or demonstration and other places, and it is not possible to function as a good or restricted part of the place of the assembly or demonstration itself (Article 13(1)1 of the Enforcement Decree of the Assembly and Demonstration Act presents an example of “where it is necessary to limit the place of an assembly or demonstration” as one of the grounds for establishing a line for maintenance of order, but it is interpreted not to limit the place itself of the reported assembly or demonstration, but to prevent an assembly or demonstration from extending outside the place of the previous assembly or demonstration reported).

Article 5(1)1 of the Assembly and Demonstration Act provides for the prohibition of, or restriction on, an assembly or demonstration to achieve the purpose of a political party dissolved according to the decision of the Constitutional Court (Article 5(1)1); Article 5(1)2 of the Assembly and Demonstration Act provides for the prohibition of, inter alia, any assembly or demonstration which may directly pose a threat to public safety and order by means of collective violence, intimidation, destruction, fire prevention, etc. (Article 5(1)); notification of, if the details of the assembly report are not supplemented (Article 8(1)2); and the prohibition of, if two or more reports overlap with those of the time and place of assembly or demonstration, if they conflict with one another or more (Article 8(2)); and the prohibition of, or if it falls under the neighboring areas of residential areas, schools, and military installations, the provision on the prohibition or restriction of, where the resident or manager requests the protection of facilities or place of a political party (Article 8(3)); Article 11(1)2 of the Assembly and Demonstration Act provides for the prohibition of, etc.

However, in light of the fact that if a line of order keeping under Article 13(1) of the Assembly and Demonstration Act is established within the place of assembly, it may bring about the same result as partially “restricted” or “wholly prohibited” depending on the form and degree of the line of order keeping, allowing a line of order keeping under Article 13(1) of the Assembly and Demonstration Act to be set within the place of assembly is inconsistent with the overall system of the Assembly and Demonstration Act, which provides for the prohibition or restriction of assembly or demonstration only under strict requirements.

(B) Whether it is possible to set the so-called “order keeping line”

Article 2 Subparag. 5 of the Assembly and Demonstration Act provides that the definition of a line of order keeping shall be defined as “a boundary mark, such as belt, fence, train, etc.” with regard to the definition of a line of order keeping, and Article 24 Subparag. 3 of the Assembly and Demonstration Act provides that a line of order keeping shall be punished for a considerable time without a justifiable reason, notwithstanding a police officer’s warning, or “a person who damages the utility of a line of order by causing damage, concealment, moving, or removal, or by any other means.” As can be seen in the above provision, the form of a crime infringing on maintenance of order is equivalent to the crime of damage under the Criminal Act. As can be seen, it is possible to punish a police officer as a crime of obstruction of performance of official duties with regard to the exercise of force against polys who are installed by means of reducing police officers, and the interpretation of penal provisions should be strict and excessively expanded or analogical interpretation of the meaning of penal provisions against the defendant. Thus, it does not violate the principle of no punishment without the law, and thus, the so-called “maintenance of order keeping order” of a police officer, etc.

(3) Sub-determination

As seen earlier, the order keeping line under the Assembly and Demonstration Act is “a boundary mark dividing the place of assembly and other places” and therefore, it should be set up in the outer space of the assembly place, not in the form of possessing a part of the assembly place. However, the order keeping line of this case was set up at the outside of the assembly place. Although the area occupied in the assembly place was reduced to a half of the area compared to the order keeping line set up on July 24, 2013, the day of this case, it still accounts for approximately 1/3 of the assembly place. Accordingly, the order keeping line of this case cannot be deemed a lawful establishment pursuant to the provisions of subparagraph 5 of Article 2 and Article 13 of the Assembly and Demonstration Act.

On the other hand, under the name of “inducing order keeping line” at the time of the instant assembly, police officers did not seem to fall under the order keeping line under the Assembly and Demonstration Act, as well as the provisions of the Assembly and Demonstration Act, which provide for the protection of freedom of assembly, especially the police and organizer’s duty to cooperate. Article 19(10) of the Assembly and Demonstration Act provides that if police officers enter the place of assembly, they shall be informed to the organizer of the assembly, and the organizer and moderators of the assembly shall cooperate with the police officers in the performance of their duties. However, it is evident that the continuous possession of a part of the assembly place under the name of “inducing order keeping line” by police officers is against the purport of the provision on entry and exit of police officers under Article 19 of the Assembly and Demonstration Act and the purport of the provision on mutual cooperation duty.

B) Whether it is legitimate as a maintenance line under the law of private employment

(1) The premise for the determination

Article 6(1) of the Minority Act provides that “If a police officer deems that a criminal act is about to be committed in front of the police officer, the police officer may issue a warning to interested persons to prevent such act, and if it is urgently required due to such act to inflict harm on human life and body, or to inflict serious damage on property, the police officer may restrain such act.” The provision concerning the restraint of police officers requires the immediate administrative enforcement of the police officer for the prevention of the crime, i.e., removal of an imminent obstacle to the police officer, and if it is difficult to order the police officer to do so without any time or to order his/her duty, it is based on the provision concerning the power factual act in which the police officer realizes necessary conditions for the sake of the police officer by exercising his/her own force without any premise of nonperformance. Administrative compulsory performance is exceptionally permitted within an inevitable limit to achieve the administrative purpose under its nature, so that the police officer’s removal of a police officer from office under the above provision can be strictly interpreted to the minimum extent that such action can only be exercised within the scope of the police officer’s freedom and application of the Act. Therefore, it is objectively acceptable.

(2) Determination

In full view of the following circumstances recognized by the record, it cannot be deemed that there was an imminent obstacle to the police to the extent that it is necessary to install the order keeping line within the assembly place on the day of this case. Therefore, it cannot be deemed that the order keeping line of this case was legally established based on Articles 5(1) and 6 of the Act.

Before the occurrence of the instant case, there were various problems regarding the removal of the tent installed in front of the △△△△△△, and even during the process of vicarious execution, conflicts between the public officials and the Dogsung countermeasures group. However, there is insufficient evidence to deem that there was an act of harming the instant chemical group in the course of a series of assemblies and demonstrations held in the post office around May 2013.

On July 24, 2013, the day before the instant assembly was held, there was no attempt for participants to enter the instant group into the said group. On July 25, 2013, the day on which the instant assembly was held, there was no attempt for participants to enter the instant group into the said group. At the time of the instant assembly, those who participated in the assembly partially at the meeting, but did not follow the control of the organizer and did not act individually.

The police officers dispatched to the assembly site of this case were about 300 persons, and the participants were only about 100 persons. Police officers dispatched to the assembly site are sufficient to enter the assembly site in cases where the situation of the assembly of this case is more urgent than the situation of the assembly of this case at the outside of the assembly site.

The participants of the assembly have the right to voluntarily maintain the order within the meeting place in consultation with the order keeper reported by the organizer. Therefore, if the police enters the meeting place in advance and occupies part of the meeting place before the commencement of the assembly, it shall be deemed that it infringes on the right of the participants of the assembly to voluntarily maintain the order, and barring any special circumstance, it shall not be permitted.

2) Determination as to the establishment of obstruction of performance of official duties

The crime of obstruction of performance of official duties stipulated in Article 136 of the Criminal Act is established only when the performance of official duties is legitimate. Here, legitimate performance of official duties refers to not only where the act belongs to the abstract authority of a public official, but also where the act satisfies the legal requirements and methods concerning specific performance of official duties. Thus, even if the act of assault or intimidation against the public official performing an act of lack of legitimacy is committed, it cannot be deemed that the crime of obstruction of performance of official duties is established (see, e.g., Supreme Court Decisions 2004Do4731, Oct. 28, 2005; 201Do7259, Mar. 14, 2013).

As seen earlier, the order keeping line of this case cannot be deemed a lawful establishment under the Assembly and Demonstration Act or the Minority Act. In light of its details and form, etc., the freedom of assembly is considerably infringed, and its illegality is not somewhat weak. The victim’s act of continuing to maintain the order keeping line that has been illegally established cannot be deemed as an execution of official duties that need to be protected under the Criminal Act. Thus, even if the Defendants exercised tangible power against the victim performing duties lacking legality, the crime of obstruction of performance of official duties is not established. The judgment of the court below to the same purport is just, and it is not erroneous in the misapprehension of facts or by misapprehending the legal principles, which affected the conclusion of the judgment. The prosecutor’s allegation in this part is without merit.

B. The Defendants’ injury or injury resulting from the arrest on July 25, 2013

1) Determination as to whether the crime of arrest has been committed

As the crime of arrest under Article 276(1) of the Criminal Act has the character as a crime of infringement and continuous crime, the act of deprivation of freedom of physical activity continues for a certain period of time, and it may be deemed that the freedom of physical activity was practically infringed in light of the form of such act or the degree of physical restraint. Therefore, if there exists an intentional arrest, the crime of arrest is established, and the crime of assault can only be established if there is no intentional arrest.

In full view of the following circumstances that can be recognized by the record, since the Defendants’ act was committed to temporarily and partially deprive the victims of their physical freedom, it cannot be deemed that the Defendants’ act did not constitute the crime of arrest. The judgment below to the same purport is justifiable, and it does not err by misapprehending the facts or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s assertion on this part is without merit.

The continuous arrest time of the Defendants was about 10 seconds. The investigator of the National Human Rights Commission of Korea, who was at the scene immediately after the Defendants’ commencement of arrest, attempted to stop the Defendants’ act by attaching the victim’s body or left body. In addition, the Defendants led the victims from the point at which arrest began to take place to approximately 20 meters away from the point at which arrest began.

피해자의 주위에는 피해자의 지휘를 받는 경찰관들이 다수 대기 중이었고, 그 중 일부가 피고인들을 저지하기 위해 피고인들 및 피해자에게 다가갔으나 피해자는 끌려가면서도 도움을 요청하기보다는 “놔둬, 채증해”라는 지시를 반복하였다.

When the victim sees the speech to the effect that the Defendants and the participants in the assembly stop while leading, or Defendant 2 “to arrest a traffic obstruction”, the victim was punished by a telecommunication, such as “a traffic obstruction” or “a traffic obstruction,” or “a traffic obstruction is subject to punishment.”

2) Determination as to whether the crime of bodily injury resulting from arrest was established

In the crime of injury resulting from arrest, injury refers to a change of the victim’s body and health condition, and the occurrence of an obstacle to the function of life. Thus, if the victim’s wife is extremely minor and does not need to receive treatment, and there is no difficulty in daily life even if the victim’s wife does not receive treatment, and if it can be naturally cured following the passage of the time, it cannot be deemed that the victim’s physical health condition was changed, or that there was an obstacle to the function of life, thereby constituting an injury resulting from arrest.

In full view of the circumstances in its reasoning acknowledged by the evidence duly admitted and investigated, the lower court determined that it is difficult to view that the victim was proven to the extent that he/she had suffered an injury beyond a reasonable doubt due to a defect in his/her life function due to the arrest of the Defendants or a poor health condition change

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above judgment of the court below is just, and there is no error of law by misunderstanding facts or by misunderstanding the legal principles, which affected the conclusion of the judgment.

C. Defendant 3’s obstruction of performance of official duties on August 21, 2013

The lower court determined that Defendant 3’s act did not constitute obstruction of the performance of official duties, on the ground that the act of Nonindicted 21 and Nonindicted 22, a police officer, belonging to the Seodaemun Police Station, exercised a tangible power on August 21, 2013, or attempted to arrest Nonindicted 2 as an offender in the act of committing an act, on the grounds that the act of using force to participants in the assembly or attempted to arrest Nonindicted 2 as an offender at the assembly place on August 21, 2013, cannot be deemed legitimate execution of official duties

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just, and there is no error by misapprehending the facts or by misapprehending the legal principles, thereby affecting the conclusion of the judgment. The prosecutor’

5. Determination on the Defendants and the Prosecutor’s assertion of unreasonable sentencing

The Defendants appears to have been trying to make efforts to vindicate their professional arguments as attorneys-at-law, such as the protection of human rights and the realization of social justice, and rather than participating in the instant assembly for personal interest, it appears to have participated in the instant assembly in order to raise a question about the reality where the freedom of assembly was restricted before △△△△△. The order keeping line established by the Chief of South Seodaemun-gu Police Station within the place of assembly cannot be deemed to have been lawfully installed in accordance with the provisions of the Assembly and Demonstration Act or the Minority Act. As such, in the process of demanding the removal of illegal order keeping lines, the Defendants’ act of physical conflict with the victims is recognized as circumstances that may be considered in

However, even if the motive and purpose of the act has any justification, it cannot be accepted as an unlawful means in realizing such purpose. In particular, in order to fully fulfill the function of the freedom of assembly and demonstration guaranteed by the Constitution as a fundamental right, it is more true in view of the fact that it is necessary to strengthen the right of assembly and demonstration and to achieve an adequate balance with the public safety and order order and the overall legal order. Even though the Defendants did not have any circumstance to arrest the victim as a flagrant offender, it is difficult to exempt the Defendants from liability in that it is not appropriate to arrest the victim, who is the on-site manager, from among the police officers dispatched to the scene of the assembly in the course of emotional response to the legitimacy of the order keeping line in question, even though they did not have any circumstance to arrest the victim as a flagrant offender, it is difficult to avoid liability in that it is inappropriate to arrest the victim as a flagrant offender. In full view of all the sentencing conditions, such as the Defendants’ age, character and conduct, and environment, etc., as indicated in the argument in the instant case. Therefore, the Defendants and prosecutor’s allegation

6. Conclusion

Therefore, the appeal by the defendants and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

[Attachment]

Judges Yellow-type (Presiding Judge)

1) On March 3, 2013, three tents were destroyed due to a fire that occurred on March 3, 2013, but thereafter, △△△ Party newly established one tent on the front of the △△△△.

2) As to the case on the merits of the case (No. 2013Guhap54649), the Seoul Administrative Court rendered a judgment in favor of the Plaintiff on March 25, 2014 that the service of a notice of prohibition on the grounds that the service of the notice of prohibition is unlawful, thereby confirming that the notice of prohibition is invalid. The appeal and appeal by the chief of the South Seodaemun Police Station on the above judgment were all dismissed, and the said judgment

3) As to this, Nonindicted Corporation 10 filed a lawsuit seeking revocation of a disposition of prohibition under the Seoul Administrative Court Decision 2013Guhap16845. On July 16, 2013, the Seoul Administrative Court rendered a judgment revoking the above disposition of prohibition on the ground that it was a separate organization, and that the purpose of the assembly is not the same as that of the non-indicted 10, and thus, the above disposition of prohibition was illegal. The appeal and appeal by the chief of the South South South South South South South South South South South South South Korean Police Station against the above judgment became final and conclusive

4) With respect to the case on the merits of the case (2013Guhap18315), the Seoul Administrative Court rendered a decision revoking the instant assembly restriction disposition on December 6, 2013. The reason is that the place where assembly is prohibited due to the instant assembly restriction disposition is closely related to the purpose and contents of the assembly in accordance with the instant assembly restriction disposition, and it is very important as the place of assembly because it is closely related to the purpose and contents of the instant assembly report. On the other hand, even if the above assembly is held at the above place, it is difficult to view that the foregoing assembly and the meeting on the countermeasures against Magdae-gu Maeng is detrimental to the purpose of the organizer and the meeting, and it is difficult to deem that there is a high probability of physical conflict or collective violence and damage in the above assembly. The above judgment became final and conclusive as it was not appealed by the chief of the Nam-gu Police Station

Note 5) Plastic sates formed in the color plastic structure below shall be written into “Plastic sate”.

Note 6) For example, the act of temporarily obstructing the other party from leaving frighten by turning fat upon the other party’s dubage, etc. can only be deemed as an act of assault, not an act of attempted arrest, unless there are special circumstances.

(1) The head of the competent police authority may, if deemed necessary for the traffic flow on major roads of major cities prescribed by Presidential Decree, prohibit the assembly or demonstration from being conducted or place restrictions on the assembly or demonstration under the conditions for maintaining the order of traffic.

(1) The head of the competent police authority in receipt of a report pursuant to Article 6 (1) may, if deemed necessary for the protection of assemblies and demonstrations and for the maintenance of public order, set up a line for maintenance of order within the minimum scope.

주9) 이 사건 집회신고서의 개최장소 란에는 “매표소가 있는 돌담이 꺾이는 부분으로부터 ◎◎◎ 방향으로 지하철 ◁, ▷호선 ♤♤역 원형 엘리베이터 지상 탑승구까지의 인도 중 화단 경계로부터 폭 1.5m 부분, 단, △△△ 정문 쪽은 폭 3m”라고 기재되어 있다. 그런데 위 집회신고서에 첨부된 별지 도면에는 집회장소가 ‘이 사건 화단 경계부터’ 시작된다는 취지가 분명히 기재되어 있고, 위 별지 도면의 사진에는 위 화단 경계로부터 노란색 점자블록에 이르는 공간이 빨간색 실선으로 표시되어 있다. 따라서 이 사건 집회신고는 위 ‘폭 1.5m 부분’의 기재에도 불구하고 이 사건 화단 경계로부터 노란색 점자블록까지의 전체 공간을 그 집회장소로 정하고 있음이 분명하다.

(10) Article 19 of the Act provides for access by the police officer to the place of an assembly or demonstration after notification to the organizer of the assembly or demonstration, and the police officer may enter the place of the assembly or demonstration: Provided, That access to an indoor assembly place shall be limited to cases where it is urgent for the performance of his/her duties.

(11) Article 5 of the Act on the Prevention, etc. of the Occurrence, etc. of Facilities) ① In the event of natural disasters, armed accidents, destruction or collapse of artificial structures, traffic accidents, explosion of dangerous animals, appearance of dangerous animals, etc., extreme congestion or other dangerous situations, which might inflict harm on the life or body of people, or cause serious damage to property, a police officer may take the following measures: