Whether the decision of the Constitutional Court on the main sentence of Article 10 and Article 20 subparag. 3 of the former Assembly and Demonstration Act, which is the prohibition and punishment provision of the outdoor assembly or demonstration at night, has the effect of the decision of unconstitutionality (affirmative), and whether the above decision of unconstitutionality becomes effective as to the organizer who was prosecuted for violating the prohibition of outdoor assembly or demonstration at night (affirmative)

Article 21(1) of the Constitution of the Republic of Korea; Articles 10, 20 subparag. 1, and 3 (see current Article 23 subparag. 1 and 3) of the former Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007); Article 47(2) (see current Article 47(2) and (3) of the former Constitutional Court Act (Amended by Act No. 12597, May 20, 201); Article 47(3) of the Constitutional Court Act

Constitutional Court en banc Order 2011Hun-Ga29 Decided April 24, 2014 (HunGong211, 714)

Defendant 1 and four others

Defendants

Busan District Court Decision 2007No4390 Decided May 6, 2008

Of the judgment of the court below, the part on Defendant 1 and 2 and the part on the violation of the former Assembly and Demonstration Act due to the participation in an outdoor assembly at night against Defendant 3 are all reversed, and this part of the case is remanded to Busan District Court Panel Division. The remaining appeals by Defendant 3 and the appeals by Defendants 4 and 5 are all dismissed.

1. The appeal by the defendant 1 and 2 and the appeal by the defendant 3 on the violation of the former Assembly and Demonstration Act due to the organization and participation of the defendant 3 at night.

The lower court convicted Defendant 1 of all of the facts charged by applying Articles 20 subparag. 1 and 3 and the main text of Article 10 of the former Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007; hereinafter “former Assembly and Demonstration Act”), and convicted Defendant 2 and 3 of all of the part arising from Defendant 1’s participation in the night outdoor assembly and demonstration. However, in the case of the Constitutional Court Decision 201Hun-Ga29, April 24, 2014, the Constitutional Court rendered a decision that “The part regarding “Article 10” of Articles 10 and 20 subparag. 3 of the former Assembly and Demonstration Act is in violation of the Constitution as long as it applies to “the outdoor assembly or demonstration from sunset to twenty-four days after the same day.”

The above decision of the Constitutional Court, despite the form of expression in the above provision of the former Assembly and Demonstration Act, is deemed to be a partial unconstitutional intent of Article 47 of the Constitutional Court Act that "from sunset time to 24 days before the same day" is in violation of the Constitution. Thus, the decision of the Constitutional Court becomes effective as a decision of unconstitutionality under Article 47 of the Constitutional Court Act. Article 20 of the former Assembly and Demonstration Act is based on the common punishment of part of night outdoor assembly or demonstration under the main sentence of Article 10 of the former Assembly and Demonstration Act. However, the statutory punishment differs depending on whether the person who hosts an outdoor assembly or demonstration at night (Article 10 subparagraph 3) is a person who hosts an outdoor assembly or demonstration at night (Article 20 subparagraph 3). Thus, the above decision of the Constitutional Court is against a participant as provided in subparagraph 3 of Article 20 of the former Assembly and Demonstration Act, but it is a decision of unconstitutionality as to the above part during night time period.

Therefore, the part concerning “an outdoor assembly or demonstration” under Article 47(2) of the former Assembly and Demonstration Act is retroactively invalidated pursuant to the proviso of Article 47(2) of the Constitutional Court Act, so this part of the facts charged charged, which was charged by applying the above Article, constitutes a case where the crime is not committed. Therefore, the lower court that found the Defendant guilty of this part of the facts charged, became unable to be maintained as a result.

2. As to Defendant 3’s appeal on the violation of the former Act due to Defendant 3’s violation of the code of conduct by participants in the assembly, and Defendant 4 and 5’s appeal

In full view of the evidence duly admitted, the lower court acknowledged the facts charged that Defendant 3, 4, and 5 attended the “Labor Law Down Stacking Assembly” held in Busan on December 1, 2006 and attempted to enter into the city of Busan ○○○○○○○○○○○○○○○○○ Party, thereby assaulting police officers, thereby violating the obligations of participants in the assembly, and convicted them of this part of the facts charged. The allegation in the grounds of appeal by the above Defendants disputing this point is nothing more than attributable to the adoption of evidence and fact-finding which belong to the exclusive jurisdiction of the lower court, and thus, cannot be deemed a legitimate

3. Conclusion

Therefore, the part of the judgment below against Defendant 1 and 2 and the part on the violation of the former Act due to Defendant 3’s participation in an outdoor assembly at night is reversed without examining the allegations in the grounds of appeal, and this part of the judgment below is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by Defendant 3 and the appeals by Defendants 4 and 5 are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)