[1] The meaning of "Assembly" subject to guarantee and regulation under the Assembly and Demonstration Act

[2] In a case where participants in an assembly on a funeral go beyond the level of movement and progress for labor systems, etc. conducted within the scope of the purpose and purpose of a funeral, whether prior report on an assembly and demonstration is required in accordance with the Assembly and Demonstration Act in a case where participants in an assembly on a funeral go beyond the level of movement and progress for labor systems (affirmative)

[3] Requirements for an order to dissolve an unreported outdoor assembly or demonstration, and whether a punishment may be imposed pursuant to Article 24 subparag. 5 of the Assembly and Demonstration Act only in cases where the order to dissolve is not complied with (affirmative)

[1] Article 2 subparag. 2 of the Assembly and Demonstration Act / [2] Article 2 subparag. 2, Article 6, and Article 15 of the Assembly and Demonstration Act / [3] Article 21(1) and (2) of the Constitution of the Republic of Korea, Article 6(1), Article 20(1)2 and (2), Article 22(2), and Article 24 subparag. 5 of the Assembly and Demonstration Act

[1] Supreme Court Decision 2007Do1649 Decided July 9, 2009 (Gong2009Ha, 1367) Supreme Court Decision 2010Do15797 Decided December 22, 2011

Defendant 1 and five others

Defendants

Attorney Park Jong-ok

Seoul Central District Court Decision 2010No4708 Decided May 12, 2011

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

The grounds of appeal are examined.

1. As to the allegation in the grounds of appeal regarding the act conducted at the Seoul Sung-si Hospital

A. Article 2 Subparag. 2 of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) defines that “the term of a demonstration means a place where many people can freely pass, such as a road, plaza, park, etc., with the common purpose, or showing influence or influence by force or pressure,” does not have any definition as to the concept of assembly. However, an assembly subject to security and regulation under the Assembly and Demonstration Act refers to “the temporary gathering of a specific or unspecified number of people for the purpose of forming their common opinions and expressing them externally” (see, e.g., Supreme Court Decision 2007Do1649, Jul. 9, 2009). Meanwhile, Article 15 of the Assembly and Demonstration Act provides that an outdoor assembly report should be submitted to the chief of the competent police station in advance, in cases of coming-of-age, coming-age, marriage, funeral, funeral, funeral, funeral, etc., even if it is necessary for a person to submit a report on an outdoor assembly or demonstration beyond the scope of his/her prior participation in the assembly and demonstration.

B. According to the facts duly admitted by the court below, when Nonindicted 2, who was working at the Yangyang Factory of Nonindicted Co. 1, died after being blickly ill in the Seoul Sungdong Hospital, the organization called “the health and human rights guardian of semiconductor workers,” took place from the Seoul Sungdong Hospital to the main hall of Nonindicted Co. 1, located in Seocho-dong, Seoul, and planned to hold the events held by Nonindicted Co. 1, 2, 3, and 4, who was a member of the above organization, after the deceased’s surviving families gather the deceased for their blick and left the funeral hall as a crematorium of the deceased, and after the deceased’s surviving families were flicked from the funeral hall, he was able to find out the fact that the Defendant 1, 2, 3, and 4, who was a member of the above organization, started to be able to voluntarily blick the police hall and that “the death of Nonindicted Co. 2, 200, 000.”

C. Examining the above facts in light of the legal principles as seen earlier, the act of the above Defendants, on the one hand, committed to the peace of the Seoul Sungsung Hospital in front of the funeral hall by taking advantage of the opportunity to hold a funeral ceremony for the deceased and going beyond the scope of pure commemorative appearance against the deceased, thereby leading up to the act of carrying out a place where the general public can freely pass through with other common purposes, or showing power or influence, or suppressing the opinion of an unspecified number of people, and thus, it is necessary to submit a report in advance to the chief of the competent police station in accordance with Article 6 of the Assembly and Demonstration Act by falling under the “ Demonstration” as prescribed by the Assembly and Demonstration Act.

In the same purport, the judgment of conviction on this part of the charges that the above Defendants did not report to the chief of the competent police station, is justifiable in its conclusion. The court below did not err by finding facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending the legal principles on assemblies and demonstrations under the Assembly and Demonstration Act, as alleged in the grounds of appeal

2. As to the ground of appeal regarding the act of failing to comply with the dispersion order

A. The court below found the Defendants guilty on this part of the charges of violating the Assembly and Demonstration Act by failing to immediately dissolve the Defendants’ assemblies and demonstrations in the vicinity of Non-Indicted 1 Co., Ltd. in three times of the dispersion order, on the premise that the Defendants violated the Assembly and Demonstration Act, on the following grounds: (a) if the participants in an assembly or demonstration, who did not report, did not immediately dissolve the assembly or demonstration in the three times of the dispersion order, even if such assembly or demonstration itself was in peace; and (b) if such assembly or demonstration was in itself carried out, it constitutes a dispersion order

B. However, it is difficult to accept the above determination by the court below for the following reasons.

1) Article 6(1), Article 20(1)2, Article 20(2), and Article 24 Subparag. 5 of the Assembly and Demonstration Act imposes a duty to report on a person who intends to hold an outdoor assembly or demonstration by requiring the person who intends to hold such an assembly or demonstration to submit a report stating specific matters to the chief of the competent police station from 720 hours to 48 hours before commencing the outdoor assembly or demonstration, and the head of the competent police authority may order the person who fails to report as a result thereof to dissolve an outdoor assembly or demonstration through a specific procedure, and punish the person who fails to dissolve without delay upon the order of dispersion.

The purpose of the Assembly and Demonstration Act’s prior reporting system is to protect legitimate outdoor assemblies or demonstrations by grasping the nature, size, etc. of such outdoor assemblies or demonstrations by a report in advance, and to prepare measures to maintain public safety and order together by preventing any danger to public safety and order resulting therefrom (see Supreme Court Decision 2008Do3974, Oct. 23, 2008, etc.).

However, Article 21(1) of the Constitution provides that “All citizens shall have the freedom of speech and press, and freedom of assembly and association,” thereby guaranteeing the freedom of assembly including demonstration as a fundamental right. Such freedom of assembly is a fundamental right for an individual to freely express his/her opinion and assertion in group without intervention or coercion of state power, and belongs to an individual’s personality formation element and an essential element of a representative democracy state. Therefore, permission for assembly is not allowed under Article 21(2) of the Constitution, and restriction on freedom of assembly may be justified only in any case where it is essential to protect other important legal interests. In particular, dissolution of assembly should be permitted only where there is a clear direct danger to other persons’ legal interests or public peace and order (see Supreme Court Decision 2009Do13846, Oct. 13, 201).

In full view of the constitutional value and function of the freedom of assembly, the constitutional spirit that declared the prohibition of permission for assembly, the purport of the reporting system as seen earlier, etc., the report is significant in providing specific information on assembly to an administrative agency for cooperation in the maintenance of public order, and it shall not be changed into an application for permission for assembly. Therefore, it cannot be readily concluded that the outdoor assembly or demonstration is not allowed to be held beyond the protection of the Constitution solely on the ground that the report was not filed.

Therefore, even if Article 20(1)2 of the Assembly and Demonstration Act does not provide for separate dispersion requirements while subject to a dispersion order, such outdoor assembly or demonstration may be ordered to dissolve pursuant to the above provision only if it clearly poses a direct danger to the legal interests of others or public peace and order, and only if it does not comply with the dispersion order that satisfies such requirements, it shall be punished pursuant to Article 24 subparag. 5 of the Assembly and Demonstration Act. If such outdoor assembly or demonstration may be dissolved solely on the ground that the report is not filed, it is unreasonable in fact as it infringes on the freedom of assembly because it actually operates the prior report system as permitted or otherwise infringes on the freedom of assembly. Even if interpreting Article 20(1)2 of the Assembly and Demonstration as above, the normative power of the prior report system can be sufficiently secured only to punish the organizer of an outdoor assembly or demonstration who fails to perform the duty to report under Article 22(2) of the Assembly and Demonstration Act.

2) In light of such legal principles, the lower court’s conviction on this part of the facts charged solely on the ground that the Defendants’ assembly and demonstration are subject to dispersion order as provided by the Assembly and Demonstration Act insofar as the Defendants’ assembly and demonstration are not reported. Furthermore, the lower court should have deliberated and determined whether the Defendants’ failure to comply with dispersion order constitutes a violation of the Assembly and Demonstration Act, and accordingly, should have determined whether the Defendants’ failure to comply with such dispersion order, as indicated in this part of the facts charged.

In the end, this part of the judgment of the court below is erroneous in the misapprehension of legal principles as to the failure to comply with the dispersion order of the Assembly and Demonstration Act, which affected the conclusion of the judgment. The

C. As above, the part of the lower judgment against the Defendants in violation of the Assembly and Demonstration Act regarding the Defendants’ non-compliance with the dispersion order should be reversed without any further determination as to the remainder of the grounds of appeal by the Defendants. As to Defendants 1, 2, 3, and 4, the lower court upheld the first instance judgment that sentenced one punishment on the grounds that the part against the violation of the Assembly and Demonstration Act and the part against the non-compliance with the above dispersion order and the violation of the non-compliance with the Assembly and Demonstration Act were concurrent crimes under the former part of Article 37 of the Criminal

3. Conclusion

Therefore, 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 Ahn Dai-hee (Presiding Justice)