Defendant 1 and two others

Both parties

South Korean nationals

Law Firm Civil Law Firm, Attorney Lee Dong-young

Suwon District Court Decision 2008 Godan505 Decided October 13, 2010

All appeals filed by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants

(1) The point of interference with business

Considering the fact that the amount of damage caused by obstruction of business is 254,100,000 won, violence and intimidation is against the executive officers and employees of Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) and against the non-indicted Co. 2’s non-indicted Co., Ltd., and is committed in the course of urging to participate in the strike against the non-indicted Co. 2, the crime of interference with business is not established.

(2) Violation of the Punishment of Violence, etc. Act (joint injury) by Defendant 2 and 3

The above Defendants did not participate in the act of assault against the victims, non-indicted 4 and their families, and only told the victims, non-indicted 4 and their families. The above Defendants are nothing more than blocking them to prevent assault against the victims and their families, according to CCTV images, Defendant 2 can get out of the victim non-indicted 4's behind the victim, and block the access of the branch members, and Defendant 3 can check the face that he is able to protect the victim's surroundings, and the assault against the victims, non-indicted 4 and their families was committed by contingently. In light of these facts, the above Defendants are not subject to criminal liability by joint principal offenders.

(3) Violation of the Punishment of Violences, etc. Act (joint property damage)

① Defendant 1: Group refusal is based on the local branch’s own decision and is not based on the order of the above defendant, which is the head of the branch. The above defendant does not bear criminal liability for joint principal offenders, taking into account the following: (a) the defendant urged the members of the branch to call violence to negotiate with the non-indicted 2; (b) the physical and violent means are not anticipated; (c) there is no means to dispatch letters and notes that can read the participation in the assembly; (d) the defendant participated in the assembly as the head of the superior organization; and (e) the defendant 2, who is the person in charge of the division, took the lead of the assembly; and (e) he takes charge of vehicle control by the loudspeaker, etc., but this is merely the process of dissolution of the assembly.

② Defendant 3: Around August 21, 2007, Defendant 3 entered the assembly site and did not participate in violence; and Defendant 3’s assault against the victim Nonindicted 3 was occurred by members of the sexual incompetence branch, which was not anticipated at all. In light of the above, the above Defendant is not subject to criminal liability for joint principal offenders.

(4) The point of general traffic obstruction

① Defendant 1 and Defendant 2: A freight truck parkedd in the first line among the two-way lanes is about 30 vehicles, and this is not for the purpose of minimizing parking spaces, but for preventing towing by the police. Considering the fact that the vehicle stops in light of light bars to induce the participation of collective refusal of transportation among the land owners, general traffic obstruction is not established.

② Defendant 1: The above Defendant participated in the assembly at the latest after parking the freight, and was not subject to criminal liability on the ground that he/she is the head of the branch office.

(b) Prosecutors;

(1) As to Defendant 3

As to the violation of the Punishment of Violences, etc. Act (joint destruction of property), the obstruction of business and the obstruction of general traffic prior to August 9, 2007, except for the victim non-indicted 3: On the part of the defendant, the court below found the defendant guilty of the above charges since it is erroneous in the misapprehension of the facts of misconception of the facts. The court below found the defendant not guilty of the above charges, since it is erroneous in the misapprehension of the facts.

(2) As to Defendant 1 and 2

In light of the fact that the demonstration stipulated in the Assembly and Demonstration Act is not necessarily premised on the movement of the place, and that the above Defendants committed an act of protruding vehicle engineers on the roads through which the general public pass, etc., it is sufficient to influence the opinions of many and unspecified persons or to control them, and thus, it can be recognized that the above Defendants conducted a demonstration, and thus, the court below acquitted the above Defendants on the ground that the above Defendants constituted an outdoor assembly. In so doing, the court below erred by misapprehending the legal principles.

(3) Regarding the Defendants

In light of the Defendants’ acts, the lower court’s punishment is unreasonable.

2. Determination

A. As to the defendants' assertion of mistake of facts

(1) The conspiracy, which is a subjective element of a co-principal, is sufficient if there is a combination of intent to jointly commit a crime between co-offenders. The combination of doctors is established even if all accomplices do not gather at the same time, at the same place, in order and implicitly, and even if they are made in secret and impliedly. As long as such conspiracy was made, even if they did not participate in the conduct, they are held liable for other accomplices' acts (see Supreme Court Decisions 95Do2930, Mar. 8, 1996; 2006Do755, Nov. 13, 2008).

(2) In light of the following circumstances acknowledged by the lower court’s legitimate adoption of the victims of the instant case and the evidence, i.e., the head of the △△ branch, Defendant 2’s participation in the meeting of the △△ branch, Defendant 3’s participation in the event of a large number of members participating in the meeting, and the fact that there was a conflict in the process of encouraging the victims to participate in the strike, and that the Defendants were actually participating in the assembly, and that the Defendants were unable to take advantage of the fact that the Defendants did not appear to have been aware of the fact that there was an act of assault by Nonindicted Party 4 and the Defendant 2’s participation in the assembly, and that there was no assault by Nonindicted Party 5 and the Defendants’ participation in the assembly, which was likely to cause an injury to the victims of the instant case, and that the Defendants did not take account of the fact that there was an assault by Nonindicted Party 2 on the part of the members who participated in the assembly, and that there was no violence by Nonindicted Party 2 on the part of their families.

B. Regarding the prosecutor's assertion of mistake

(1) Violation of the Punishment of Violences, etc. Act (common property damage) except for Defendant 3’s non-indicted 3, and obstruction of business prior to August 9, 2007 and obstruction of general traffic.

(A) Summary of the facts charged

On August 7, 200, from around 23:00 on August 7, 2007 to around 21:00 of the same month, the above defendant conspiredd with 60 branch members of the non-indicted 2's goods delivery business, such as ① from around 3:00 of the above day of August 23:0, 207, the assembly was held in front of the Suwon-si Station ( Address omitted) Water Station in front of the Suwon-si Station in the opening site of the water center in the Suwon-si. The branch obstructed the business of delivering goods of the non-indicted 2, such as: (a) stop by light-lighting and threatening the cargo vehicles that the branch has access to the water center; (b) go through through the entrance of the vehicle from around 15:00 to around 3:00 on the front of the road, and (c) interfered with the traffic of the remaining cargo 6:5,379,000 won on the front of the vehicle other than the victim's non-indicted 3; (d)

(B) The judgment of the court below

The court below found the defendant not guilty on the ground that the above defendant's statement of non-indicted 5 that "the defendant participated in the assembly prior to August 9, 2007," was made after being detained, and according to each description of the outside vehicle driving log and the certificate of measurement, the above defendant was engaged in cargo transport business at another place until August 7, 2007, and it is difficult to believe the above statement as it is, and there is no prosecutor's proof that he was exercising or was in the position to exercise specific influence over the assembly in light of the above defendant's status. The court below found the above defendant not guilty on the ground that the defendant cannot be held liable for co-principal's liability for the crime committed prior to the assembly on August 9, 2007 only because he had arrived at the assembly site around 21:00.

(C) Judgment of the court below

According to the evidence duly adopted and examined by the court below, the above circumstances acknowledged by the court below can be acknowledged (the defendant 5 stated in the court below that "the defendant was first admitted at the court below around August 21, 2007, when he injured the victim non-indicted 4, etc." (the non-indicted 5 stated in the court below that "the defendant was injured by the victim non-indicted 4, etc.)" and the prosecutor's assertion that "the defendant was involved in an assembly during the assembly, and again participated in the assembly again" can be recognized as co-principal liability in the event of functional control, but the above defendant's statement that he is the non-indicted 5 as the head of the organization of the △ branch office (the non-indicted 5 stated the above defendant as the head of the organization division at the Jeju branch office, and the non-indicted 8 stated that "the head of the organization division division at the court below is not the head of the organization division at the court below," and it cannot be found that the defendant was not guilty prior to the above assembly's exercise of influence.

(2) Defendant 1 and 2’s violation of the Assembly and Demonstration Act

(A) Summary of the facts charged

On August 7, 2007, the above Defendants organized an outdoor demonstration from around 60 members to around 04:00 of the same month, and from around 22:00 on August 8, 2007 to around 04:10 on September 1, 2007, the above Defendants organized an outdoor demonstration at night at night.

(B) The judgment of the court below

The lower court found the Defendants not guilty on the ground that, in light of the following: (a) the Defendants’ aforementioned Defendants’ report on a day-time assembly by specifying the distance near the Suwon Center in front of the Suwon Center; (b) the assembly was in progress even during night; (c) there was no location movement; and (d) the publicity was conducted during the day-time hours; and (c) such assembly constitutes an assembly, not a “auction” under the premise of a temporary change as prescribed by the “Assembly and Demonstration Act; and (d) the assembly constitutes a non-conformity with the Constitution by the Constitutional Court en banc Order 2008Hun-Ga25 Decided September 24, 2009 (the Constitutional Court Order 2008Hun-Ga25 Decided September 24, 2009) with respect to night assemblies, it cannot be punished by the legislation by the legislators until June 30, 2010.

(C) Judgment of the court below

Article 2 (Definition 1) of the Assembly and Demonstration Act provides that “an outdoor assembly” refers to an assembly held in a place with no ceiling or with no erosion control closed, and Article 2 (1) 2 provides that “a demonstration” refers to an assembly held by any third person at a place where the general public can freely pass, such as roads, squares, parks, etc. with a common purpose, or showing power or influence, or pressure," and does not provide for an assembly. Article 3 (hereinafter) provides that “an assembly shall be held in a same manner without distinguishing an assembly and demonstration from an assembly and demonstration.” Thus, an assembly may be deemed “a specific or many unspecified persons form a common opinion and gather it temporarily at a certain place for the purpose of expressing it externally” (see Supreme Court Decision 2008Do3014, Jun. 26, 2008). In other words, even within the meaning of the demonstration, an assembly appears to have a high impact on an unspecified person’s opinion by means of an independent expression of force, etc., without any specific person’s opinion.

Therefore, as recognized by the court below, the above defendants were gathered to the Suwon Center for the industrial action against the non-indicted 2 company, and thus they constitute an assembly, and the violation of the above Act is not established by the Constitutional Court's decision of inconsistency with the Constitution as to the night outdoor assembly. Thus, the court below's judgment that acquitted the above defendants is not erroneous in the misapprehension

C. Regarding the prosecutor's assertion of unreasonable sentencing

In light of the fact that the assembly, in which the Defendants participated, committed an offense such as damage to others, but the Defendants did not directly commit an act of damage, etc., the victims of injury and interference with their work, the sentence against the participation in the assembly, Defendant 2, and Defendant 3, etc. were committed for a considerable period of time, it cannot be deemed that the lower court’s sentence that sentenced the Defendants to a suspended sentence is somewhat weak.

3. Conclusion

Therefore, the appeal by the defendants and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

[Attachment Form 5]

Judges Cho Jong-man (Presiding Judge) and Cho Jong-hee Kim