[1] The meaning of "Assembly" subject to legal guarantee and regulation of assembly and demonstration

[2] The purport of the Assembly and Demonstration Act stipulating “prior duty to report” for an outdoor assembly or demonstration, and whether a duty to report is exempted in a case where an opinion that seeks to indicate through an outdoor assembly is justifiable (negative)

[3] The elements for recognizing a crime of non-compliance with the dispersion order to the participants of an outdoor assembly who did not report in advance under the Assembly and Demonstration Act

[1] Article 1, Article 2 subparag. 1, and subparag. 2 of the Assembly and Demonstration Act / [2] Article 21 of the Constitution of the Republic of Korea, Articles 6(1), and 22(2) of the Assembly and Demonstration Act / [3] Article 21 of the Constitution of the Republic of Korea, Articles 6(1), 20(1)2, (2), (3), and 24 subparag. 5 of the Assembly and Demonstration Act, Article 17 of the Enforcement Decree of the Assembly and Demonstration Act, Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2008Do3014 Decided June 26, 2008 (Gong2008Ha, 1105) Supreme Court Decision 2007Do1649 Decided July 9, 2009 (Gong2009Ha, 1367) / [2] Supreme Court Decision 2008Do9049 Decided February 25, 2010 / [3] Supreme Court Decision 2005Do3491 Decided September 28, 2005

Defendant 1 and one other

Defendant 1 and Prosecutor

Suwon District Court Decision 2010No1542 decided November 5, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

The purpose of the Assembly and Demonstration Act (hereinafter “Act”) is to properly harmonize the guarantee of the right to assembly and demonstration and the public safety and order by guaranteeing lawful assembly and demonstration as much as possible and protecting citizens from unlawful demonstration (Article 1). In addition, even though the concept of the assembly itself does not have any definition, it is defined that the assembly itself refers to an act that affects the opinions of many unspecified people, such as roads, squares, parks, etc. where many people can freely pass through, or exert their power or power or power (Article 2 subparag. 2), and the outdoor assembly is guaranteed and regulated at the same time under Article 3 below. In light of the contents and purport of the above provision of the Act, an assembly subject to security and regulation under the above Act refers to an assembly that a specific or many unspecified persons form their common opinions and temporarily gather them at a certain place for the purpose of expressing them externally (see, e.g., Supreme Court Decision 2009Do749, Jul. 16, 2009).

In addition, the purport of the Assembly and Demonstration Act that requires the chief of the competent police station to report certain matters in advance to the head of the competent police station on the outdoor assembly or demonstration is to protect legitimate outdoor assembly or demonstration by ascertaining the nature, size, etc. of the outdoor assembly or demonstration in advance by such report, and to prepare prior measures to maintain public safety and order by preventing any infringement of other persons or community interests through the outdoor assembly or demonstration. Therefore, the opinion that intends to indicate through the outdoor assembly or demonstration is justifiable, and the above duty to report is not exempted (see Supreme Court Decision 2008Do9049, Feb. 25, 2010, etc.).

Based on its adopted evidence, the court below acknowledged the non-party 1's non-party 1's order that approximately 25 members of the organization in the judgment around 09:0 on March 8, 2008, Defendant 1's order, the secretary general, be gathered in order to conduct a press conference in front of the military comprehensive training site in the U.S. on March 8, 2008, and these days from around 10:00 to 12:20 on the same day constituted an outdoor assembly that should be reported in advance pursuant to Article 6 (1) of the Assembly and Demonstration Act, and found that the above press conference violated the Assembly and Demonstration Act by failing to report it in advance.

Examining the reasoning of the judgment below in light of the aforementioned legal principles, the court below is just in finding the Defendant guilty of the charge of violation of the Assembly and Demonstration Act. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the concept of assembly or the legal principles on justifiable act, or by exceeding the bounds of the principle of free evaluation of evidence.

2. As to the Prosecutor’s Grounds of Appeal

According to Articles 24 subparag. 5, 20(2), 20(1)2, and 6(1) of the Assembly and Demonstration Act, the head of the competent police authority, etc. may demand voluntary dispersion of an outdoor assembly held without filing a prior report within a considerable period of time, and if such demand or demand is not complied with, all participants shall be dissolved without delay, and if such dispersion order is given, those violating such order shall be subject to criminal punishment. Meanwhile, upon delegation of Article 20(3) of the Assembly and Demonstration Act, Article 17 of the Enforcement Decree of the Assembly and Demonstration Act provides specific matters necessary for voluntary dispersion demand and notification of dispersion order. In light of the contents and purport of the relevant provisions, the dissolution of an assembly is an exercise of public power that seriously limits the freedom of assembly, and the requirements and procedure thereof must be strictly interpreted, the head of the competent police authority, etc. shall demand voluntary dispersion against the participants in the outdoor assembly without filing a prior report, and the method of voluntary dispersion order shall be proven to comply with Article 20(3) of the Enforcement Decree of the Assembly and Demonstration Act.

The court below held that it is difficult to recognize that the head of the competent police authority, etc. directly requested voluntary dispersion or ordered three times or more when ordering dissolution of the assembly of this case in light of the evidence relation as stated in its reasoning. The court below maintained the first instance court that acquitted Defendant 2 on the grounds that there was no proof of a crime against the charges of refusing the dispersion order with regard to Defendant 2.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s measures are justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the bounds of the principle of free evaluation of evidence.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)