2018Do6605 A. Injury resulting from special obstruction of performance of official duties

(b) General traffic obstruction;

(c) Interference with business;

(d) Performance of official duties;

(e) Violation of the Punishment of Violences, etc. Act (joint residence intrusion);

(f) Violation of the Assembly and Demonstration Act;

Defendant 1 and two others

Defendants

Law Firm aiming at Law Firm and one other

Supreme Court Decision 2015Do10109 Decided December 22, 2017

Busan High Court Decision 2018No8 decided April 12, 2018

December 28, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1 and Defendant 2’s grounds of appeal

A. Article 8 of the Court Organization Act provides that “The determination made in a trial of a higher court shall bind the lower court as to the relevant case.” The latter part of Article 436(2) of the Civil Procedure Act stipulates that the court of final appeal shall bind the lower court in its factual and legal judgment which the court of final appeal considers as the ground for reversal. Although the Criminal Procedure Act does not have any express provision corresponding thereto, in light of the purport of the aforementioned legal provision, the existence of the tier system, and the fact-finding in the Supreme Court’s judgment in determining the grounds of final appeal, it is possible to intervene in the legitimacy of the lower court’s judgment as to the fact-finding, which has become the grounds for reversal of the judgment in the final appeal. Therefore, the court that was remanded from the final appeal after remanding the criminal case shall be bound by the factual and legal judgment presented by the final appeal court as the grounds for reversal (see, e.g., Supreme Court Decision 2008Do10572, Apr. 9, 2009).

B. On June 12, 201, the lower court affirmed the first instance judgment that acquitted Defendants 1 and 2 on the ground that there was no legitimate dispersion order at least three times on the part of the violation of the Assembly and Demonstration Act due to non-compliance with the dispersion order (hereinafter “the Assembly and Demonstration Act”) on June 12, 201.

The prosecutor appealed against this and appealed. The remanded court reversed and remanded the case to the effect that the police officer Nonindicted Party ordered three times or more by the chief of the competent police authority, and the participants could have sufficiently known of this order, and thus, the police broadcast could be seen as constituting legitimate dispersion order. After remanding the case, the court below (hereinafter referred to as the "the court below") found the Defendant guilty of violating the Act due to the violation of the Act due to the non-compliance with the dispersion order on June 12, 201, based on evidence duly adopted without any additional hearing.

C. Examining in light of the aforementioned legal principles, the lower court’s judgment is justifiable in accordance with the binding force of the judgment remanded. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the dispersion order as prescribed by the Assembly and Demonstration Act,

2. As to the grounds of appeal by Defendant 3, the lower court upheld the first instance judgment convicting Defendant 3 of the violation of the Punishment of Violences, etc. Act (joint residence intrusion) against Defendant 3, the fact that general traffic obstruction occurred on July 9, 201, and the violation of the Act due to non-compliance with the dispersion order on July 31, 201. Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, without examining necessary matters, or by misapprehending the legal doctrine on the entry of buildings, general traffic obstruction, and dispersion order, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik-taik

Justices Park Jung-hwa

Jeju High Court Justice Kim Jong-soo