Whether the Constitutional Court’s ruling of inconsistency with the Constitution as to the provisions of the Assembly and Demonstration Act that prohibit an outdoor assembly or demonstration and punish a violation thereof at a place within one hundred meters from the boundary of the National Assembly’s headquarters constitutes a decision of unconstitutionality as to the provisions of the Punishment Act (affirmative)

Article 11 subparag. 1, Article 20(1)1 and (2), Article 23 subparag. 3 and Article 24 subparag. 5 of the Assembly and Demonstration Act, Article 47(3) of the Constitutional Court Act, Article 325 of the Criminal Procedure Act

Supreme Court Decision 2019Do8453 Decided May 28, 2020, Supreme Court Decision 2018Do17454 Decided June 4, 2020 (Supreme Court en banc Decision 2018Do18187 Decided July 9, 2020, Supreme Court Decision 2019Do2757 Decided July 9, 2020, Supreme Court Decision 2013Hun-Ba322, 2016Hun-Ba354, 2017Hun-Ba360, 398, 471, 2018Hun-Ba3, 44, 99 (Hun-Gong260, 838) Decided May 31, 2018

Defendant

Prosecutor

Attorney Park Jong-ok

Seoul Southern District Court Decision 2018No641 decided June 20, 2019

The appeal is dismissed.

The grounds of appeal are examined.

1. A. The Constitutional Court rendered a ruling of inconsistency with the Constitution to the effect that “The part concerning “the National Assembly Party” in Article 11 subparag. 1 of the Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007; hereinafter “the Assembly Assembly Assembly Assembly Act”) and Article 11 subparag. 1 of Article 23 of the Assembly and Demonstration Act shall not be in conformity with the Constitution,” and that “the above provision of the Act shall continue to apply until it was amended by December 31, 2019,” and “The above provision of the Act shall continue to apply until it was amended by December 31, 2019” [the Constitutional Court Decision 2013Hun-Ba322, 2013Hun-Ba354, 2016Hun-Ba354, 2017Hun-Ba360, 398, 2018Hun-Ga34, 2018, 34, 94, etc.1.

B. The above decision of inconsistency with the Constitution is a decision of unconstitutionality as to Article 47(3) of the Constitutional Court Act, and where a decision of unconstitutionality as to Article 47(3) of the Act on Punishment is rendered, the provision becomes retroactively null and void. As such, the court shall render a judgment not guilty as to a prosecuted case against which a public prosecution was instituted upon the application of the pertinent provision pursuant to the former part of Article 325 of the Criminal Procedure Act (see, e.g., Supreme Court Decisions 2019Do8453, May 28, 2020; 2018Do17454, Jun. 4, 2020).

C. In addition, Article 20(1)1 of the Assembly and Demonstration Act (Article 24 subparag. 5 and Article 20(2) of the Assembly and Demonstration Act) provides that the chief of the competent police station, on the ground that “the National Assembly and Demonstration Party” is a place where a demonstration is prohibited under Article 11 subparag. 1 of the Assembly and Demonstration Act, a dispersion order is ordered and the participants did not comply with the order, and Article 20(2) of the Assembly and Demonstration Act is committed, Article 20 subparag. 5 and Article 20(2) of the same Act. As seen earlier, in combination with Article 20(2) and Article 20(1) of the Assembly and Demonstration Act, Article 11 subparag. 1 of the Assembly and Demonstration Act, which becomes retroactively null and void due to the unconstitutional ruling as seen earlier, and the Defendant’s non-compliance with

2. The lower court rendered a not-guilty verdict in accordance with the former part of Article 325 of the Criminal Procedure Act on the ground that the legal provision of this case on the participation in the assembly of the place of prohibition became retroactively null and void in accordance with the decision of inconsistency with the Constitution of the Republic of Korea, and rendered a not-guilty verdict in accordance with the latter part of Article 325 of the Criminal Procedure

3. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, there is no error of misapprehending the legal principles regarding the validity of the Constitutional Court decision of inconsistency with the Constitution, contrary to what is alleged in the grounds of appeal. Although it is inappropriate to apply the latter part of Article 325 of the Criminal Procedure Act to the part concerning the non-compliance with

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

Justices Noh Tae-tae (Presiding Justice)