[1] The constitutional guarantee of freedom of assembly and demonstration / The purport of Article 6(1) of the Assembly and Demonstration Act and Article 10 of the same Act, which limit, in principle, an outdoor assembly and demonstration at night after 24:00 hours prior to and after the first report system on the outdoor assembly and demonstration

[2] Requirements and procedures for legitimate dispersion order for an outdoor assembly or demonstration in violation of the main sentence of Article 10 of the Assembly and Demonstration Act and an outdoor assembly or demonstration not reported in advance pursuant to Article 6(1) of the Assembly and Demonstration Act, etc. / Whether the purpose of requesting voluntary dispersion is clearly included in the dispersion order (affirmative)

[1] The Constitution, along with the freedom of speech and press, guarantees the freedom of assembly as one of the fundamental rights of the people (Article 21(1)). The freedom of assembly includes the freedom of demonstration, that is, the freedom of collective expression of the intent formed through an assembly, which would affect an unspecified number of people. Such freedom of assembly and demonstration is guaranteed only for peaceful assembly and demonstration. An expression of opinion using peaceful means is protected, but it is not allowed to force the use of violence.

Since an assembly or demonstration entails a collective action by a large number of people, it is highly likely to cause public safety and order or legal peace and peace compared to an individual expression of opinion. In particular, compared to indoor assemblies or demonstrations, an outdoor assembly or demonstration has a high risk of conflicting with the rights and interests of others, and may cause inconvenience to the general public or cause danger to public order, such as traffic congestion, in the course of collective action while using public places, such as roads, etc.

The Assembly and Demonstration Act (hereinafter “Act”) generally guarantees the right to peaceful assembly and demonstration (see Articles 3 and 5), but it limits the freedom of assembly and demonstration by requiring a person who intends to hold an outdoor assembly and demonstration to submit a report stating the purpose, date and time (including necessary hours), place, organizer (in the case of an organization, including its representative), etc. to the chief of the competent police station from 720 hours to 48 hours before the outdoor assembly is commenced (Article 6(1)). Such prior report is to prevent conflict of interest between the organizer, third parties, and the general public by adjusting the interests of the organizer, third parties, and by exchanging and cooperating with each other before the outdoor assembly and demonstration is held, to protect public safety and order that may be infringed by the outdoor assembly and demonstration and to minimize its danger.

Furthermore, the Assembly and Demonstration Act limits, in principle, an outdoor assembly or demonstration before sunrise and after 24:00 hours to maintain social safety and order and protect the peace and privacy of citizens (main text of Article 10): Provided, That the head of the competent police authority allows an outdoor assembly to be permitted even before sunrise or even after 24:0 hours, subject to conditions for maintaining order, if the organizer reports it in advance with moderators due to the nature of the assembly as inevitable (proviso of Article 10).

[2] Article 10 of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) provides that an outdoor assembly or demonstration in violation of the main sentence of Article 10 and an outdoor assembly or demonstration which fails to file a prior report under Article 6(1)1 and 2). According to Article 20 of the Assembly and Demonstration Act and Article 17 of the Enforcement Decree of the Assembly and Demonstration Act (hereinafter “Enforcement Decree of the Assembly and Demonstration Act”), a national police officer authorized by the head of the competent police authority or the head of the competent police authority may request the organizer to declare the conclusion of the assembly or demonstration only in cases where such outdoor assembly or demonstration clearly poses direct danger to other’s legal interest or public safety and order. If an assembly or demonstration is not in compliance with such a request, or if an assembly or demonstration continues to be conducted despite its closure declaration, he/she may order voluntary dispersion at least three times, and if an assembly or demonstration organizer fails to comply with such demand, he/she may be punished for non-compliance with the order under Article 20 subparag. 1 and 4 of the Assembly and Demonstration Act.

In light of the language, content, and structure of the Assembly and Demonstration Act and the Enforcement Decree thereof, a dispersion order is imposed on the participants of a demonstration who do not comply with the demand for voluntary dispersion. As such, the purport of the demand for voluntary dispersion ought to be clearly included. Whether the demand for voluntary dispersion had already been made depending on the progress of the demonstration, whether the declaration of closure or the demand for voluntary dispersion had already been made, the language and content of the police broadcast, and the electronic sign board at the time of the broadcast, if used together with visual media, etc., it is sufficient to know that there was dispersion order from the perspective of the average person in society, in light of the contents and location of the broadcast, the interval and frequency of the broadcast, etc., and it does not necessarily require the use

[1] Article 21(1) of the Constitution; Articles 3, 5, 6(1), and 10 of the Assembly and Demonstration Act / [2] Articles 6(1), 10, 20, and 24 subparag. 5 of the Assembly and Demonstration Act; Article 17 of the Enforcement Decree of the Assembly and Demonstration Act

[2] Supreme Court en banc Decision 2000Do2172 Decided November 24, 200 (Gong2001Sang, 210) Supreme Court en banc Decision 2010Do6388 Decided April 19, 2012 (Gong2012Sang, 912) Supreme Court Decision 201Do6294 Decided April 26, 2012

Defendant

Defendant and Prosecutor

Attorney Seog-young

Seoul Western District Court Decision 2015No751 decided October 22, 2015

The judgment below is reversed, and the case is remanded to the Seoul Western District Court.

1. Prosecutor's grounds of appeal are examined.

A. Violation of the Assembly and Demonstration Act (hereinafter “Act”) due to the failure to comply with the dispersion order issued on June 12, 2011 (related to “voluntary bus”);

(1) The Constitution, along with the freedom of speech and press, guarantees the freedom of assembly as one of the fundamental rights of citizens (Article 21(1)). The freedom of assembly includes the freedom of demonstration, that is, the freedom of collective expression of the intent formed through an assembly, which would affect an unspecified number of people. Such freedom of assembly and demonstration shall be guaranteed only for peaceful assembly and demonstration. An expression of opinion using peaceful means is protected, but it is not allowed to force the use of violence.

Since an assembly or demonstration entails a collective action by a large number of people, it is highly likely to cause public safety and order or legal peace and peace compared to an individual expression of opinion. In particular, compared to indoor assemblies or demonstrations, an outdoor assembly or demonstration has a high risk of conflicting with the rights and interests of others, and may cause inconvenience to the general public or cause danger to public order, such as traffic congestion, in the course of collective action while using public places, such as roads, etc.

The Assembly and Demonstration Act generally guarantees the right to a peaceful assembly or demonstration (Articles 3 and 5), but it limits the freedom of assembly or demonstration by requiring a person who intends to hold an outdoor assembly or demonstration to submit a report stating its purpose, date and time (including necessary hours), place, organizer (in the case of an organization, including its representative), etc. to the chief of the competent police station from 720 hours to 48 hours before the outdoor assembly is commenced (Article 6(1)). Such prior report aims to prevent conflicts of interest between the organizer, third parties, and the general public in advance at the stage of the outdoor assembly or demonstration, to prevent conflicts of interest between the organizer, third parties, and to ensure the peaceful progress of the assembly or demonstration by exchanging and cooperating with each other, to protect public safety and order that might be infringed by the outdoor assembly or demonstration and to minimize its danger.

Furthermore, the Assembly and Demonstration Act limits, in principle, an outdoor assembly or demonstration before sunrise and after 24:00 hours to maintain social safety and order and protect the peace and privacy of citizens (main text of Article 10): Provided, That the head of the competent police authority allows an outdoor assembly to be permitted even before sunrise or even after 24:0 hours, subject to conditions for maintaining order, if the organizer reports it in advance with moderators due to the nature of the assembly as inevitable (proviso of Article 10).

(2) Article 10 of the Assembly and Demonstration Act provides that an outdoor assembly or demonstration in violation of the main sentence of Article 10, and an outdoor assembly or demonstration without filing a prior report under Article 6(1) is subject to dispersion order (Article 20(1)1 and 2). According to Article 20 of the Assembly and Demonstration Act and Article 17 of the Enforcement Decree of the Assembly and Demonstration Act (hereinafter “Enforcement Decree of the Assembly and Demonstration Act”), the head of the competent police authority or a national police officer authorized by the head of the competent police authority may request the organizer of the assembly or demonstration to declare the closure of the assembly or demonstration only when such outdoor assembly or demonstration clearly poses direct danger to another person’s legal interest or public peace and order. In the event of failure to comply with the request or continuation declaration, a voluntary dispersion order shall be issued to the participants at least three times, and all participants of the assembly or demonstration shall be subject to dispersion order without delay pursuant to Article 20 subparag. 261 of the Enforcement Decree of the Assembly and Demonstration Act (see, e.g., Supreme Court en banc Decision 2001Do164.

In light of the language, content, and structure of the Assembly and Demonstration Act and the Enforcement Decree thereof, a dispersion order is imposed on the participants of a demonstration who do not comply with the demand for voluntary dispersion. As such, the purport of the demand for voluntary dispersion ought to be clearly included. Whether the demand for voluntary dispersion had already been made depending on the progress of the demonstration, whether the declaration of closure or the demand for voluntary dispersion had already been made, the language and content of the police broadcast, and the electronic sign board at the time of the broadcast, if used together with visual media, etc., it is sufficient to know that there was dispersion order from the perspective of the average person in society, in light of the contents and location of the broadcast, the interval and frequency of the broadcast, etc., and it does not necessarily require the use

(3) The lower court acquitted the Defendant of violation of the Assembly and Demonstration Act due to the failure to comply with the dispersion order related to the first desired bus among the facts charged in the instant case, on the ground that it is difficult to deem that there was a lawful dispersion order on the grounds that the police broadcast related to the instant demonstration falls under a demand for dispersion not to issue an dispersion order

(4) However, the lower court’s determination is difficult to accept for the following reasons.

According to the evidence duly admitted by the court below and the first instance court, the following facts are revealed.

(A) The instant demonstration was not reported and continued beyond 24:00 on June 11, 201.

(B) On June 12, 201, from 00:36 to 02:28, the Nonindicted Party sent a broadcast on nine occasions from the police broadcast vehicle with the authority of the chief of the police station in Busan Yeongdeungpo-do Police Station, on the following grounds: (a) on a total of nine occasions: (b) from 00:36 on June 12, 201, the Nonindicted Party sent a broadcast of the same content from the police broadcast vehicle to 02:00 to 02:0.

(C) The electronic display board installed outside the police broadcast vehicle at the time of such a broadcast by the Nonindicted Party was clearly displayed from the phrase “the first dispersion order” to the phrase “the nineth dispersion order.”

(D) A approximately 400 participants of a demonstration began to conduct a demonstration in front of the ○ Heavy Industries, from June 12, 201 to 00:45 on June 12, 2011. Some participants began to go beyond the fence of the ○ Heavy Industries from around 01:25 on the same day. From around 01:30 on the same day, the situation of the demonstration, such as physical fighting with security guards, or separation of fire extinguishing equipments, etc.

(5) The following may be determined in light of the progress of the instant demonstration, the contents of the police broadcast and the display of the electronic sign board, the distance and frequency of the broadcast, the situation of the demonstration at the time of the broadcast, etc.

The instant demonstration is an unreported night demonstration, and constitutes a case where the demand for conclusion declaration may be omitted pursuant to Article 20(1)1 and 2 of the Assembly and Demonstration Act, and the proviso of Article 17 of the Enforcement Decree of the Assembly and Demonstration Act. The Nonindicted Party, who was authorized by the chief of the competent police station, requested the participants of the instant demonstration directly through the police broadcast, requested the voluntary dispersion of the participants of the instant demonstration. The participants of the demonstration did not comply with the demand, but proceed toward the ○ Heavy Industries, and it may be deemed that the order of dispersion was issued more than three times in the situation where the legal interests of others, such as going beyond the fence of the ○ Heavy Industries, and the direct danger to public safety and order was obviously brought about. The participants of the demonstration may have been aware of the fact that the order of dispersion was issued through the police broadcast and the display of the electronic sign board. Accordingly, there is room to view the foregoing police broadcast as constituting a legitimate dispersion order

(6) The Supreme Court affirmed the judgment of the court below that found the Defendant guilty of violating the Act due to the failure to comply with the dispersion order on June 12, 2011 on the premise that there had already been a lawful dispersion order in the demonstration on June 12, 2011 (see, e.g., Supreme Court Decisions 2014Do11817, Mar. 12, 2015; 2014Do10982, Jun. 11, 2015).

(7) On the other hand, the lower court should have deliberated on the language and content of the police broadcast following the progress of the demonstration, the interval and frequency of the broadcast, the relationship between the police broadcast and the display of visual media, and the location of visual media, etc., and should have determined whether the police broadcast, compared with the relevant case, notified specific grounds for dissolution, constitutes legitimate dispersion order meeting the procedural requirements.

Nevertheless, the lower court determined that it was difficult to regard police broadcasts as lawful dispersion order, contrary to the Supreme Court’s decisions regarding the demonstration on June 12, 2011, unlike the Supreme Court’s decisions as seen supra. In so doing, the lower court erred by misapprehending the legal doctrine regarding dispersion order under Article 20(1) of the Assembly and Demonstration Act, which led to the failure to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

B. The remaining grounds of appeal

The Prosecutor also appealed the guilty portion of the lower judgment, but did not submit the appellate brief within the statutory period, and did not state the grounds for appeal in the petition of appeal.

2. The defendant's grounds of appeal are examined.

A. Violation of the Act and general traffic obstruction due to participation in the night demonstration related to “HH Bus 1” due to the failure to comply with the order of dispersion from July 9, 201 to July 10, 201 (related to “HH Bus 2”) and the violation of the Act and general traffic obstruction due to the failure to comply with the order of dispersion

Of the facts charged in the instant case, the lower court convicted all of the violation of the Act and general traffic obstruction due to the participation in the night demonstration related to the “HH Bus 1” and the violation of the Act and general traffic obstruction due to the refusal of dispersion order related to the “HH Bus 2”.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the crime of interference with general traffic under the Act, contrary to what is alleged in

(b) Violation of the Punishment of Violences, etc. Act (joint residence and intrusion);

The Defendant also appealed against the violation of the Punishment of Violences, etc. Act (joint residence) in the lower judgment. However, the Defendant did not submit the appellate brief within the statutory period, and did not state the grounds for appeal in the petition of appeal.

3. Scope of reversal

Of the judgment of the court below, the violation of the Act due to the failure to comply with the dispersion order related to “the first desired bus” should be reversed for the same reason as seen above. However, this part and the remaining parts found guilty are concurrent crimes under the former part of Article 37 of the Criminal Act and should be sentenced to a single punishment. Therefore, the entire judgment of the

Meanwhile, among the facts charged in the instant case, the lower court deemed that the violation of the Assembly and Demonstration Act and the general traffic obstruction due to the participation in the night demonstration related to the “Hing Bus 1” are in substantive concurrences with each other, but the general traffic obstruction resulting therefrom ought to be deemed to be in an ordinary concurrence relationship (see Supreme Court Decision 2008Do10960, Aug. 25, 201, etc.).

4. Conclusion

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 Chang-suk (Presiding Justice)