[1] In a case where an indoor assembly is held on a building, etc. adjacent to the reported place after reporting that an outdoor assembly should be held, whether the act that deviates from the reported scope may be punished as a violation of the Assembly and Demonstration Act (negative)

[2] In a case where indoor assemblies held in a building managed by another person and indoor assemblies in public structures such as public offices are subject to dispersion order

[1] The Assembly and Demonstration Act (hereinafter “Act”) requires an outdoor assembly or demonstration to file a prior report, and further punishs an outdoor assembly or demonstration beyond the scope of the report. However, there is no provision stipulating that an indoor assembly should be reported on the indoor assembly. Therefore, in a case where an indoor assembly is held on a building adjacent to the reported place without holding an outdoor assembly different from the reported contents, it cannot be punished as a violation of the Act for the act of deviating from the reported scope in the course of holding the reported outdoor assembly.

[2] The freedom of assembly is fundamental right guaranteed by the Constitution. However, if an indoor assembly is held in a building managed by another person, it may be restricted by the Act to the extent that it does not infringe on its essential contents (Article 37(2) of the Constitution). It is also stipulated in such context that the Assembly and Demonstration Act (hereinafter “Act”) requests voluntary dispersion in certain cases, such as “an assembly which is unable to maintain order due to an act that disturbs order by means of violence, intimidation, destruction, fire prevention, etc.” and that orders dissolution may be ordered if not complying with such request (Article 20(1) of the Act). Meanwhile, indoor assembly may be held without prior report under the Act, but such freedom may also be restricted if necessary for the protection of other important legal interests. Therefore, even in a case where an indoor assembly is held in the building managed by another person, it shall be deemed that it constitutes an act that disturbs public order and order, such as assault, threat, destruction, fire prevention, etc., even if it does not constitute an infringement of public order and order by holding an indoor assembly and order, etc.

[1] Articles 6(1), 16(4)3, and 22(3) of the Assembly and Demonstration Act / [2] Articles 21(1) and 37(2) of the Constitution of the Republic of Korea, Articles 16(4)2, 20(1)5 and (2), and 24 subparag. 5 of the Assembly and Demonstration Act

[2] Supreme Court Decision 2009Do13846 Decided October 13, 2011 (Gong2011Ha, 2392)

Defendant 1 and two others

Defendants and Prosecutor

Attorney Lee Young-chul

Busan District Court Decision 2010No1887 Decided October 15, 2010

The part of the judgment of the court below regarding the violation of Articles 20 (1) 5 and 16 (4) 2 of the Assembly and Demonstration Act among the whole guilty part and the acquittal part of the judgment of the court below shall be reversed, and this part of the case shall be remanded to the Busan District Court Panel Division. The prosecutor's appeal on the remaining acquittal part shall be dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal by Defendants 2 and 3 as to the holding of an outdoor assembly not reported on August 20, 2009

In order to hold an outdoor assembly, the Assembly and Demonstration Act (hereinafter “Act”) provides that the chief of the competent police station who received a report shall report certain matters in advance to the chief of the competent police station, thereby protecting legitimate outdoor assembly by ascertaining the nature, size, etc. of the outdoor assembly and by preventing any infringement of others or community interests through the outdoor assembly, and accordingly, requires the competent police station to take prior measures to maintain public safety and order. As such, it cannot be said that the above duty to report is exempted on the grounds that the competent police station knows that the outdoor assembly or demonstration would be held, or that the assembly or demonstration would be peaceful (see Supreme Court Decision 2007Do1649, Jul. 9, 2009).

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court is justifiable to have rendered a judgment that convicted Defendant 2 and Defendant 3 of this part of the facts charged. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of legal doctrine as to the scope of application of Articles 22(2) and 6(1)

2. As to the grounds of appeal by the Prosecutor on the holding of an outdoor assembly on September 4, 2009

A. Article 6(1)3 of the Assembly and Demonstration Act regarding cases where an outdoor assembly was held beyond the bounds of recognition as identical to the reported assembly is deemed to have been violated. However, in a situation where its identity is maintained, if the organizer who reported the outdoor assembly clearly deviates from the scope of the reported purpose, date, time, place, method, etc., it constitutes a violation of Article 16(4)3 of the Assembly and Demonstration Act. In this case, the organizer who reported the outdoor assembly, in the process of holding the event under his/her own initiative, does not constitute an act of holding an outdoor assembly without permission, solely because he/she deviates from the scope of the reported purpose, date, time, place, method, etc., and it is difficult for the organizer to view it as the actual act of holding the assembly without permission, even if it is difficult for the organizer, participating group, etc. to make a separate report from the first reported one under the direction of the organizer, participating group, etc., or if it is deemed that it is extremely difficult for the organizer, participating group, etc., to be held without permission for an alteration of the entire assembly.

B. The court of first instance, as cited by the court below, acknowledged the fact that the Defendants held an outdoor assembly at the place reported from 19:35 to 20 minutes on September 4, 2009, where the Defendants reported to the effect that “the Defendants will hold an assembly in the Busan-dong Busan-dong-dong-dong-gu Busan-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong

(1) The facts charged as to the above facts are that the Defendants held an unreported outdoor assembly by holding the above assembly, and the judgment of the court of first instance determined that the Defendants were innocent for the following reasons. In other words, although the above assembly led to an outdoor assembly beyond the reported duration and night time, Article 10 of the Assembly and Demonstration Act was prohibited as a matter of principle until sunset, and there was no choice but to limit the duration of the assembly until sunset, and it seems possible for many people to predict the possibility that the assembly will be delayed or delayed. ② Article 10 of the Assembly and Demonstration Act prohibiting the night outdoor assembly as provided in the above Article 10 of the Assembly and Demonstration Act provides that the restriction on the view that it will be sunset by the Constitutional Court’s decision to be inconsistent with the Constitution is difficult to view that it would compromise the identity of the assembly; ③ as to the organizer of the unreported outdoor assembly, the court below determined that the above report should be imposed imprisonment for not more than two years or a fine not exceeding one million won, and the above circumstances and fine exceeding one year should be deemed to be identical.

(2) Furthermore, the lower court acquitted the Defendant on the charges of the violation of the Assembly and Demonstration Act, which clearly deviates from the scope of the assembly reported by the appellate court. In other words, the lower court determined that: (a) the foregoing assembly was not guilty on the following grounds: (i) the assembly was carried out as a substitute for the purpose, place, method, etc. of the assembly except the date of the assembly; (ii) the participants are forced to attend the assembly due to the absence of the time of the assembly; and (iii) the assembly is deemed to have been delayed due to the attendance of the participants after the early withdrawal; and (iv) the assembly was prohibited in principle by the Assembly and Demonstration Act until the time of the report of the assembly in this case; (iv) the possibility that the assembly might be delayed or delayed by a large number of people, and (v) the fact that there is no circumstance to deem that the above assembly is obviously beyond the reported scope, and thus, it also seems that the above assembly constitutes a lack of charge.

C. Examining the reasoning of the judgment below in light of the aforementioned legal principles and the records, the above assembly held on September 4, 2009 is identical to the reported assembly, its purpose, and its organizer, and the number of participants or the method of assembly is limited to the extent of extension of the time held only within the reported scope. Thus, this does not constitute an act clearly deviating from the reported assembly’s identity and the scope of the report. Therefore, the judgment of the court below that the above main and ancillary facts charged with holding the assembly are all acquitted is just, and contrary to the prosecutor’s grounds of appeal, it is not erroneous in the misapprehension of relevant legal principles.

3. As to the Defendants’ ground of appeal as to the joint residence intrusion as of October 13, 2009

The court below affirmed the judgment of the court of first instance, and found that the defendants, etc., refused the request of the Minister of Land, Infrastructure and Transport, and the head of the 3 division of the Korea Air Transport Industry Workers' University, and the members of the Busan Branch of the Busan Branch of the Korea Harbor Service (hereinafter referred to as the "Towing") and the Ulsan Branch of the Busan Branch of the Busan Branch of the Busan Branch of the District Office for Employment and Labor (hereinafter referred to as the "Seoul Branch") decided that the members of the Busan Branch of the Busan Branch of the District Office for Employment and Labor, were not in a practical situation but in a general situation, did not make a realistic restraint, but did not have a normal access, and reported the situation immediately. The court below found that the defendant 1, 2, and the head of the 3 division of the 1st branch of the Labor Improvement Group, who visited the defendants 1, 2, and 2, requested the members of the Association to leave the facilities to let the Defendants and the members of the Association.

Upon examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and it is not recognized that there is an error of law such as misunderstanding of legal principles as to the intentional act of intrusion upon a structure, as otherwise alleged in the ground of appeal.

4. As to the Defendants’ grounds of appeal on the violation of the place of assembly report on October 13, 2009

A. Article 16(4)3 of the Assembly and Demonstration Act provides that any person who intends to hold an outdoor assembly or demonstration shall submit a report stating the purpose, date, place, organizer, person in charge of liaison, moderators’s address, occupation, contact address, organization and person scheduled to participate in the assembly or demonstration, and method thereof to the chief of the competent police station (Article 6(1)). Article 16(4)3 of the Assembly and Demonstration Act provides that the organizer of the assembly or demonstration shall not clearly deviate from the scope of the purpose, date, time, place, method, etc. of the report (Article 22(3)). As such, the Assembly and Demonstration Act requires an outdoor assembly or demonstration to be reported in advance, and is punished for deviation from the scope of the report. However, there is no provision stipulating that an outdoor assembly should be reported on the indoor assembly. Accordingly, if an indoor assembly is held in a building adjoining the reported place without holding the report, it shall not be punished for any act beyond the scope of the report.

B. Although the Defendants reported that they would hold an outdoor assembly in India in front of the Busan Labor Office, the lower court maintained the first instance judgment convicting the Defendants and members of the 121 member of the Busan Labor Office as to the facts charged of violating the Assembly and Demonstration Act, the lower court affirmed the first instance judgment, which found the Defendants guilty on the charge of violating the Assembly and Demonstration Act, as the Defendants did not hold an outdoor assembly at the reported place, and as they contacted with the participants in the assembly, immediately entered the building of the Busan Labor Office and opened the indoor assembly on the first floor.

C. However, in light of the legal principles as seen earlier, even if the Defendants held an indoor assembly at the seat of the Busan Labor Office, it cannot be deemed that there was a deviation from the reported scope while holding an assembly recognized as identical to the reported scope, and thus, it cannot be punished as “an act clearly deviating from the reported scope, such as the reported purpose, date, time, place, method, etc.” under Article 16(4)3 of the Act.

Nevertheless, the lower court found the Defendant guilty of this part of the facts charged is erroneous in matters of law by misapprehending the legal doctrine regarding outdoor assembly beyond the scope of the above report, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit

5. As to the ground of appeal by the prosecutor on October 13, 2009 regarding the non-compliance with the dispersion order

A. The summary of this part of the facts charged is that the Defendants, on October 13, 2009, ordered an interview with the Administrator of the Busan Labor Administration on the road of the Ministry of Busan Labor and demanded an interview with the Administrator of the Busan Labor Administration on October 13, 2009, and did not immediately dissolve the Defendants, even though they received a dispersion order on the ground that they continued to hold an assembly that the scope of the reported assembly's place, method, etc. is clearly beyond the clear limit and continued to be unable to maintain order.

The court below acquitted Defendants and members of the court on the following purport: (a) the order of dispersion under Article 20(1)5 of the Assembly and Demonstration Act constitutes “an assembly which is unable to maintain order due to an act falling under any of the subparagraphs of Article 16(4).” (b) The evidence submitted by the prosecutor submitted by the prosecutor was insufficient to acknowledge that the target assembly was an assembly which was unable to maintain order; and (c) the Defendants and members did not enter the Busan Labor Office and did not commit violence, intimidation, damage, or fire-prevention, and did not deem the act of intrusion on the instant structure as an act of disturbing order corresponding to assault, threat, damage, or fire-prevention.

B. As seen earlier, although the above assembly reported that it would hold an outdoor assembly, it would not be deemed a violation of Article 16(4)3 of the Assembly and Demonstration Act, since it was held as an indoor assembly immediately. Therefore, the lower court’s judgment is justifiable to have acquitted the part of the facts charged that the above assembly constitutes an act clearly deviating from the scope of the outdoor assembly reported by the above assembly on the premise that it constitutes an act clearly deviating from the scope thereof.

C. However, we cannot agree with the judgment of not guilty on the charge that the above assembly constitutes an act falling under Article 16(4)2 of the Assembly and Demonstration Act, and thus, constitutes “an assembly which is unable to maintain the order,” and thus is subject to dispersion order.

(1) The freedom of assembly is fundamental right guaranteed by the Constitution. However, if necessary for national security, maintenance of order, or public welfare, it may be limited by law to the extent that it does not infringe on its essential contents (Article 37(2) of the Constitution). The Assembly and Demonstration Act requests voluntary dispersion in certain cases, such as “an assembly which is unable to maintain order due to an act that disturbs order by violence, intimidation, destruction, fire prevention, etc.” and allowing dissolution order in such context (Article 20(1) of the Assembly and Demonstration Act).

Meanwhile, an indoor assembly may be held without a prior report under the Assembly and Demonstration Act, but if it is necessary for the protection of other important legal interests, its freedom may be restricted. Therefore, even in a case where an indoor assembly is held in a building managed by another person, it shall be deemed as an object of dispersion order in a case where the assembly’s purpose, purpose, number of participants, method of assembly, behavior, etc., such as falling under “an assembly which is unable to maintain order by causing violence, intimidation, damage, fire-prevention, etc.” (Articles 20(1)5 and 16(4)2 of the Assembly and Demonstration Act, and if the assembly’s place is directly and obviously dangerous against other person’s legal interests or other public peace and order, it shall be deemed as being the object of dispersion order. Even if the assembly’s place is indoor of a public structure, such as a government office, etc., but it is not a place where the opening of the assembly is generally permitted, so long as it violates the peace of the building or performance of normal functions, and furthermore, it reaches the extent that order can not be maintained.

(2) According to the reasoning of the lower judgment and evidence duly admitted by the lower court, the following facts were revealed. ① The Busan Labor Administration, the Busan and the Busan Metropolitan City Mayor as its jurisdiction, and the government offices performing public duties, such as job creation, protection of labor conditions, prevention and mediation of labor disputes, promotion of workers’ welfare, etc. ② On August 7, 2009, the Busan and the Ulsan District Council’s 10th Franchiscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscisciscis 15 times in front of Busan and the Busan City 20th Piscisciscisciscisciscisciscisciscisc, and the head of the Busan 10th Pisciscisciscisciscisc 10.

(3) Various circumstances revealed by the above facts, i.e., the Busan Labor Office’s public offices performing public duties, such as employment stability and mediation of labor-management disputes, and it is difficult to view it as an open place where the general public or civil petitioners, etc. are allowed to hold an assembly within the building without permission. In full view of the circumstances leading by the Defendants, such as the circumstance that the Defendants led members to enter the building, which is the place of the assembly in question; the purpose and size of the assembly; the method and duration of the assembly in question; the method and duration of the assembly in question; the size and structure of the space of the office building in question; the extent to which the assembly in question took place; the degree to cause civil petitioners’ access to the building in question; and the progress of the assembly in this case’s case’s situation, etc., the Defendant, etc.’s failure to comply with the demand to leave by force an indoor meeting by impairing other’s legal interests, such as peace and facility management rights, etc., and thereby, it is sufficient to maintain public order and order.

Nevertheless, the court below concluded that the assembly of this case does not have legitimate grounds for dispersion order. Thus, the court below erred in the misapprehension of legal principles as to the requirements and objects of dispersion order under the Assembly and Demonstration Act, which affected the conclusion of the judgment. The grounds for appeal pointing this out are with merit.

6. Scope of reversal

Ultimately, the part of the judgment of the court below regarding the violation of the Assembly and Demonstration Act regarding the violation of the place of reporting at the assembly as of October 13, 2009 and the non-compliance with the dispersion Order as of October 13, 2009 among the non-guilty part should be reversed as it is unlawful. In addition, the remaining guilty part of the judgment of the court below shall also be reversed since the aforementioned guilty part is in a concurrent crime under the former part of Article 37 of the Criminal Act.

7. Conclusion

Therefore, the part of the judgment below's conviction and not guilty as to the violation of the Act due to the dispersion order under Articles 20 (1) 5 and 16 (4) 2 of the Act shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The prosecutor's appeal on the part of not guilty except the above reversed part shall be dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)