2010Do10769 A. Violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.)

Residential Intrusion)

(b) Interference with business;

(c) Violation of the Assembly and Demonstration Act;

(d) Violation of the Punishment of Violences, etc. Act;

A

Defendant

Busan High Court Decision 2010No146-1 (Separation) decided July 28, 2010

October 15, 2014

The guilty part of the judgment of the court below is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. As to the violation of the Assembly and Demonstration Act due to the hosting of night demonstration

The lower court found the Defendant guilty of violating the Act by holding the Defendant’s night demonstration among the facts charged in the instant case by applying the main text of Article 23 subparag. 1 and Article 10 of the Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007; hereinafter referred to as the “Act”).

On March 27, 2014, which was following the pronouncement of the lower judgment, the Constitutional Court rendered a decision that "the part concerning a demonstration in the main text of Article 10 of the Assembly and Demonstration Act and the part concerning a demonstration in the main text of Article 10 of the Assembly and Demonstration Act among Article 23 subparagraph 3 of the Assembly and Demonstration Act shall be in violation of the Constitution as long as it is applied to the demonstration from sunset to 24 days from the same day."

The above decision of the Constitutional Court is deemed to have the purport of partial unconstitutionality that the part of the above Article 23 of the Assembly and Demonstration Act from sunset to 24 days on the same day is unconstitutional (see, e.g., Supreme Court Decision 2008Do9652, Aug. 20, 2014). Article 23 of the Assembly and Demonstration Act provides that the part of the night demonstration under the main sentence of Article 10 of the Assembly and Demonstration Act is a common ground for punishment. However, the above decision of the Constitutional Court is against the participant under subparagraph 3 of Article 23 of the Assembly and Demonstration Act, but it is deemed that the above part of the night demonstration among the night demonstration under Article 10 of the Assembly and Demonstration Act was unconstitutional, and thus, it also becomes effective as a decision of unconstitutionality as to the organizer of the demonstration under the main sentence of Article 10 of the Assembly and Demonstration Act (see, e.g., Supreme Court Decision 201Do610, Jul. 10, 2010).

Therefore, the part concerning the " demonstration" under the main sentence of Article 10 and Article 23 of the Assembly and Demonstration Act, which was 'from sunset to 24 days on the same day', becomes retroactively null and void pursuant to the proviso of Article 47 (2) of the Constitutional Court Act. As such, among the facts charged in this case, the organizing part of the night demonstration, which was instituted by applying the above provision of Article 47 (2) of the Constitutional Court Act, constitutes a case where the crime is not committed, and therefore, the part which found the guilty of this part of the facts charged

2. As to the violation of the Assembly and Demonstration Act due to hosting a unreported outdoor assembly

The lower court affirmed the first instance judgment convicting the Defendant of this part of the charges on this part, on the following grounds: (a) although the lower court was sentenced to a decision on inconsistency with the Constitution regarding the main sentence of Article 10 of the Assembly and Demonstration Act prohibiting night outdoor assembly; (b) as to Article 22(2) and Article 6(1) of the Assembly and Demonstration Act punishing unreported night outdoor assembly, it still remains valid without being sentenced to a decision on unconstitutionality or constitutional nonconformity; and (c) the instant assembly is not a contingent assembly, but an assembly organized by the Defendant, etc.

Examining the reasoning of the judgment below in light of the relevant legal principles, the above determination by the court below is just, and there is no error of law by misapprehending the legal principles as to the unconstitutionality of the report of outdoor assembly and its constituent elements and possibility

3. As to interference with business, a strike as an industrial action does not always constitute interference with business at all times. It is reasonable to view that interference with business constitutes interference with business only when it can be assessed that the employer’s free will to continue business may be voltage or confusion because the strike took place at a time unpredictable by the employer in light of the situation before, after, and after, the circumstances and circumstances, etc., causes serious confusion or enormous damage to the employer’s business operation (see, e.g., Supreme Court en banc Decision 2007Do482, Mar. 17, 201).

However, as to the issue of whether the strike of July 2, 2008 and the strike after July 8, 2008, which was found guilty, occurred at a time when the individual user who is the victim could not predict, and caused a serious confusion or enormous damage to the business operation of the individual user, there is room to view that this part of the facts charged does not constitute a case where the free will of the user with respect to the continuation of the business can be deemed to be disturbed or confused in light of the size of the strike, such as the participation of 8 workers in the partial strike, etc., which is a business place where it is not deemed to have caused serious confusion or enormous damage to the business operation of the user in light of the size of the strike.

Nevertheless, without properly deliberating and determining the above circumstances, the lower court concluded that a considerable number of strikes on July 2, 2008 and strikes on July 8, 2008 after July 2, 2008 constituted the crime of interference with business. Accordingly, the lower court erred by misapprehending the legal doctrine on the crime of interference with business, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

As seen above, the part of the judgment of the court below which found the Defendant guilty of the violation of the Act and the part on the crime of interference with business due to the organizing of the night demonstration against the Defendant cannot be maintained as is. The court below rendered a single sentence against the Defendant on the ground that the facts charged as above and the remaining facts charged constitute concurrent crimes under the former part of Article 37 of the Criminal Act, and thus the part

Therefore, the guilty portion of the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Chief Judge Go-young

Justices Lee In-bok, Counsel for the appeal