[1] The meaning of the former Assembly and Demonstration Act and the standard for determining whether a specific act of gathering a large number of people in a certain place constitutes a demonstration subject to reporting under Article 6 (1) of the same Act

[2] The meaning of "implementer of an assembly or demonstration" under the former Assembly and Demonstration Act, and whether a co-principal for an assembly or demonstration held without reporting constitutes a co-principal (affirmative)

[3] In a case where the defendants et al. were indicted to the effect that 10 persons such as the defendants et al. al. al. sket containing the contents of the claim for employment security, etc. and other 2 and 4 others were offered and offered outdoor demonstrations through several times in a manner subsequent to them, the case holding that the court below found the defendants not guilty of all of them on the ground that they do not constitute a person subject to reporting under the former Assembly and Demonstration Act and an act of hosting it

[1] According to Article 2 subparagraph 2 of the former Assembly and Demonstration Act (wholly amended by Act No. 8424 of May 11, 2007, hereinafter “the Act”), the term “auction” means an act of multiple persons in which they proceed with a place where they may freely pass through, or exert influence or control, by showing power or power, at a place where they may freely pass through, the public, such as roads, squares, parks, etc., for common purposes. The act of having multiple persons gather in a certain place constitutes a demonstration subject to reporting under Article 6 (1) of the Act as part of collective expression of opinion with a common purpose. It should be evaluated according to whether a specific act of which multiple persons gather in a certain place constitutes a demonstration subject to reporting under Article 6 (1) of the Act, such as the form of an act, number of participants, and other subjective aspects as a whole, including the internal relationship between them, by comprehensively taking into account the objective aspects of the act, such as the form of the act, number of participants

[2] Under Article 2 subparag. 3 of the former Assembly and Demonstration Act (wholly amended by Act No. 8424 of May 11, 2007, hereinafter “the Act”), the “implementer” refers to a person or organization holding an assembly or demonstration under his/her own name under his/her responsibility. The organizer of a demonstration for which a prior report is required pursuant to Article 6(1) of the Act refers to a person who holds or takes the lead in holding an assembly or demonstration, or who plans and forms the demonstration, and moves to the implementation. However, the organizer of an outdoor assembly or demonstration for which a prior report is required pursuant to Article 6(1) of the Act refers to a person who has planned to hold or takes the lead in the demonstration and takes the lead in the demonstration. A person who has conspired for the implementation of an outdoor assembly or demonstration through a functional control based on his/her intention with respect to the hosting of an unreported outdoor assembly or demonstration may not be exempt from the criminal liability as a co-principal even

[3] In a case where 10 persons, including the Defendants, who are workers belonging to Gap corporation's partner company Gap et al., were indicted for the purpose that 10 persons, including the defendants, were indicted for soliciting outdoor demonstration 17 times in a total of 6 days in a way subsequent to the above 17-day manner while holding 10 other 2 or 4 others in front of Gap company's party order, the case holding that each of the above acts did not constitute a "joint act" under the former Assembly and Demonstration Act and did not constitute a "joint act" under the circumstances that affected their opinions by delivering the arguments in the Preferred to in the Preferred to in the Preferred Program through multiple power or influence according to the group of roles planned in a certain place with common purpose, and it is sufficient to view that the above acts did not constitute an "joint act" under the former Assembly and Demonstration Act as an act affecting Gap's opinion, and that the above acts did not constitute a "joint act" under the circumstances that did not constitute a "joint act" under the proviso of the former Assembly and Demonstration Act.

[1] Articles 2 subparag. 2 and 6(1) of the former Assembly and Demonstration Act (wholly amended by Act No. 8424 of May 11, 2007) / [2] Article 30 of the Criminal Act, Articles 2 subparag. 3 and 6(1) of the former Assembly and Demonstration Act (wholly amended by Act No. 8424 of May 11, 2007) / [3] Article 30 of the Criminal Act, Articles 2 subparag. 2 and 3, 6(1), and 19(2) of the former Assembly and Demonstration Act (wholly amended by Act No. 8424 of May 11, 2007)

[2] Supreme Court Decision 82Do1930 Decided February 8, 1983 (Gong1983, 534), Supreme Court Decision 92Do1244 Decided August 18, 1992 (Gong1992, 279), Supreme Court Decision 2007Do6188 Decided June 26, 2008, Supreme Court Decision 2009Do2994 Decided June 23, 2009 (Gong2009Ha, 1244), Supreme Court Decision 2010Do3544 Decided July 15, 2010 (Gong2010Ha, 1613)

Defendant 1 and four others

Prosecutor

Ulsan District Court Decision 2008No420 decided March 20, 2009

The judgment of the court below is reversed, and the case is remanded to the Ulsan District Court Panel Division.

The grounds of appeal are examined.

1. According to Article 2 subparagraph 2 of the former Assembly and Demonstration Act (wholly amended by Act No. 8424 of May 11, 2007, hereinafter “the Act”), the term “ Demonstration” refers to an act of multiple people to proceed with a place where the general public may freely pass through, such as roads, squares, parks, etc. with common purposes, or to influence or control an unspecified number of people by showing power or power. Whether a specific act that multiple people gather in a certain place constitutes a demonstration subject to reporting under Article 6 (1) of the Act as part of collective expression of opinion with a common purpose, should be evaluated in full view of the objective aspects such as the form of such act and the number of participants, as well as subjective aspects such as internal ties relation.

2. The court below affirmed the judgment of the court of first instance that found the Defendants not guilty on the ground that 10 persons, including the Defendants, who are workers belonging to the partner company of the holding company, lead to an unreported outdoor demonstration by pretending to hold the “one person demonstration,” and one person prior to the question or south of the above company’s sentiments, including the above company’s argument that “the members of partnership companies wishing to guarantee the employment of .............., other 2 and 4 did not report to the chief of the competent police station 17 days in total by the method next to the above 17-day method and did not report to the chief of the competent police station 17 days, and the other acts of this case do not fall under the common order of outdoor demonstration as prescribed by the Assembly and Demonstration Act, on the following grounds.

In other words, each act of this case constitutes a so-called “one-person demonstration” not subject to the Assembly and Demonstration Act in substance, and even if there is a fact that other Defendants gather around the Defendant using a pocket book when one of the Defendants uses the pocket book, the essence of the act as “one-person demonstration” is not harmed unless it is acknowledged that other Defendants separately provided relief or distributed the leaflet to externally deliver their intentions, etc. In addition, in light of the place of each act of this case and the content of the pocket book, etc., the other party who intended to deliver the intent of this case should be deemed to be limited to the above management of the company that can determine and implement the security of employment of the Defendants rather than many and unspecified persons, and even if each act of this case constitutes a demonstration subject to the Assembly and Demonstration Act, the concept of the demonstration is premised on a combination of two or more persons, and thus, all participants in an outdoor demonstration cannot be seen as the organizer by applying the theory of joint principal crime, and the Defendants cannot be held liable only on the ground that they did not present the scene.

3. However, it is difficult to accept the above judgment of the court below for the following reasons.

A. First, according to the evidence and records adopted by the first instance court maintained by the court below, ① the defendants 1, with the common purpose of demanding the withdrawal of access control and employment security against the above company, and the multiple other persons organized and carried out each of the acts of this case by gathering their respective opinions around the above company, and ② the defendants tried to make a demonstration in advance with all the original parties in order to express their opinions such as the content in the pocket book, but they planned to express their opinions in the same form as each of the acts of this case since the report was already made at the same place by the above company, ③ those in the surrounding areas did not separately act such as taking out relief or distributing the leaflet, but they gathered close to the point where they were able to know that they were working immediately next to the above company or in such a manner, and there were no time for them to know the fact that the above acts of this case were related to the free passage of the above company as well as the place of the above acts of this case and its officers and employees.

In light of the above facts in light of the legal principles as seen earlier, each act of this case is an act that affects their opinions by showing multiple power or skills through a group of tickets according to the division of roles planned by a large number of people in one place with common purposes, and by delivering the arguments stated in the PPP to many unspecified persons, including the above company and its cooperation officers and employees, and it is sufficient to deem that the act of this case constitutes an outdoor demonstration subject to the report of the Act. On the contrary, it cannot be deemed that the act of this case is an “one person demonstration” that does not become subject to the report of the Act on the sole basis of the formal reason that not only one person, who directly incurred the PPet containing the allegation, but also other persons in its surroundings did not separately perform acts such as taking out relief or distributing the leaflet.

B. Meanwhile, under Article 2 subparag. 3 of the Assembly and Demonstration Act, the organizer refers to a person or organization holding an assembly or demonstration under his/her own name and under his/her own responsibility. The organizer of a demonstration subject to prior report pursuant to Article 6(1) of the Assembly and Demonstration Act refers to a person holding or leading the demonstration, or a person planning and organizing the demonstration and moving to the implementation of the demonstration (see Supreme Court Decision 82Do1930, Feb. 8, 1983). A person who conspired to implement an unreported outdoor assembly or demonstration through a functional control based on his/her intent of joint processing and its common intent cannot be exempted from the criminal liability as a co-principal for an unreported outdoor assembly or demonstration even if he/she did not directly participate in the specific implementation (see, e.g., Supreme Court Decisions 92Do1244, Aug. 18, 192; 2008Do686, Jun. 28, 2008).

However, as long as each act of this case constitutes an unreported outdoor demonstration as prescribed by the Assembly and Demonstration Act, in light of the above legal principles, the Defendants, who are recognized as having functional control over each of the above acts and their common intent, may be held held liable as an organizer by a co-principal regardless of whether they directly participated in the specific act of implementation. Nevertheless, the court below erred by concluding that the Defendants cannot be held liable for the crime, on the grounds that the concept of demonstration is premised on the combination of more than two persons, those who are not at the site of an unreported outdoor demonstration by applying the co-principal theory cannot be viewed as its organizer, on the ground that the court below applied the co-principal theory to the extent that they cannot be seen as its organizer.

C. Therefore, the court below's determination of not guilty of all the facts charged of this case without failing to exhaust all necessary deliberations by concluding that each act of this case does not constitute a demonstration and its hosting act as prescribed by the Assembly and Demonstration Act is erroneous in the misapprehension of legal principles as to the concept of demonstration and organizer as prescribed by the Assembly and Demonstration Act, or failing to exhaust all necessary deliberations. The prosecutor's assertion pointing this out is

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)