207 Bais213268 Compensation (as can be claimed)

34 persons who reside in Jeju-do)

[Judgment of the court below]

Attorney Park Young-chul, Counsel for the plaintiff-appellant

Korea

The legal representative Kim Minister of Justice

June 5, 2008

July 17, 2008

1. The defendant shall pay to the plaintiffs 200,000 won with 5% interest per annum from August 3, 2007 to July 17, 2008 and 20% interest per annum from the next day to the day of complete payment.

2. All of the plaintiffs' remaining claims are dismissed.

3. One-half of the costs of lawsuit are assessed against the plaintiffs, and the remainder is assessed against the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs 400,000 won each of them as well as the full payment from the day after the delivery of a copy of the complaint.

By the day, 20% interest per annum shall be paid.

1. Facts of recognition;

The following facts may be recognized if the whole purport of the pleading is added to each statement in Gap evidence Nos. 1 through 5:

A. The Plaintiffs are representatives and their members of the organizations located in Jeju-do under A’s jurisdiction.

B. A organization, from March 8, 2007 to December 12, 2007, the 8th negotiation of the Korea-U.S. Free Trade Agreement is scheduled to be opened at a hotel located in Yongsan-gu Seoul Metropolitan City, Yongsan-gu and Seoul Metropolitan Police Agency on February 27, 2007.

3. From October to sunset, the outdoor assembly reported to the effect that "I will proceed to the above hotel after holding an assembly at the square of the Seoul Metropolitan Government Office from October to sunset."

C. Accordingly, on February 28, 2007, the Seoul National Police Agency held an outdoor assembly without reporting nine times in relation to the Korea-U.S. FTA, and held an illegal assembly by exercising police violence during the assembly. As such, the assembly in this case is clear that the assembly in this case may directly pose a threat to public safety and order by unlawful act, and the assembly in this case also constitutes a major part of a major city, and it is obvious that the daily traffic volume of the above road is considerable, and it would cause serious traffic inconvenience if the number of assembly is reached due to considerable traffic volume of the above road, and (3) five assemblies reported first of all, which coincide with the reported progress and time and place, and on the ground that the assembly in this case goes against or interferes with each other at the same time.

D. However, around March 15, 100 as scheduled to withdraw the notification of prohibition of assembly, the organization requested the withdrawal of the above assembly and decided to hold a peaceful assembly in front of the Seoul Metropolitan Government Office, and applied to the administrative court for a disposition of prohibition and validity of disposition. The National Human Resources Committee recommended the permission of assembly to the police. The plaintiffs recommended the permission of assembly to the police on March 10, 2007. On March 10, 2007: 00, at the third large room of Jeju International Airport, the government tried to move to the boarding with the Jeju International Airport (KE1214) which had already been scheduled to move to the boarding. However, the defendant's head of the police station was prevented from entering the boarding by mobilizationing four police forces on the ground that the above assembly was illegal outdoor assembly, and the plaintiff was dissolved on the same day: 100.

E. Meanwhile, as police mobilized more than 18,000 military forces, a group A was unable to hold a meeting, and was dissolved after a distance from the time that requires the suspension of FTA negotiation and the guarantee of assembly in the first place of Seoul city center as a place to be convened.

2. Summary of the parties' arguments;

A. The plaintiff

In addition, the measures taken by the police under the jurisdiction of the defendant to block the plaintiffs from the point of departure to the point of departure to prevent the movement of the assembly, and the freedom of assembly is a key right to function as a democratic community along with the freedom of expression, and in particular, it is an expression of diverse interests of the people in a representative democratic society and reflect them in the political process to supplement representative democracy. Therefore, prohibiting assemblies to the above purport is limited to the last resort after the rapid exhaustion of all other restrictive means. However, even though the defendant's establishment of a maintenance line of order or actual violence at the place of assembly is possible to achieve the purpose of exercising police power when intending to commit violence at the place of assembly, it is against the least infringement doctrine, and it is against the principle of freedom of assembly, and it is necessary to completely block the participation of the assembly without considering the specific situation, which is an unlawful disposition that loses the proportionality between legal interests, and eventually, the defendant is obliged to pay consolation money equivalent to this, because it is infringed upon the plaintiffs' freedom of assembly and expression by unlawful disposition by the police.

B. In light of the previous behavior organized by the organization A, such as taking a meeting from June 2006 to around nine times for the same purpose without reporting or giving notice of prohibition of the outdoor assembly, and taking into account the number of participating in the report meeting, the expected number of participating in the report meeting, the occupation range of lanes, and the daily traffic volume of the active section, etc., the defendant's act of participating in the above illegal assembly constitutes a criminal act punished by the Act on the Performance of Duties by Police Officers, and thus, it is justified that the police officer under the defendant's control under the Act on the Performance of Duties by Police Officers in order to prevent such act constitutes a criminal act punished by the Act on the Performance of Duties by the Assembly and Demonstration.

3. Determination

A. The State's liability for compensation is a requirement that a public official's performance of his duties violates the law, so it is the key issue of this case whether the ordinary and low-income police act by the defendant satisfies the requirements for exercising police authority under the Act on the Performance of Duties by Police Officers.

However, in order to maintain the public peace and order, the nature of police power, which limits the fundamental rights of the people, is the exercise of such police power must be strictly applied to the principle of rule of law, and it must be limited to the minimum extent necessary to achieve that purpose, if the exercise of police power is necessary to eliminate clear danger and injury to the public order or danger and injury to the public.

In addition, the freedom of assembly is an element of an individual's personality creation and a part of democracy, which constitutes a human dignity and free character creation as the highest value within our constitutional order, as well as other fundamental rights that contribute to the self-determination of an individual and the formation of public opinion by collectively expressing his opinion and arguments, as well as at the same time, it is an essential element for the democratic community to function as a democratic community (see Constitutional Court Order 2000Hun-Ba67, 83 (Joint) Decision 2003, Oct. 30, 2003). Therefore, in this case where the police restrains the plaintiffs who want to understand for participation in the assembly, the judgment on whether the exercise of police power is legitimate needs to be more strict interpretation.

B. Under the former Assembly and Demonstration Act (amended by Act No. 8424, May 11, 2007; hereinafter referred to as the "Act") stipulates that "the scope of police officer's activities to prevent, suppress, and investigate crimes, other public peace and order maintenance," and "the former Assembly and Demonstration Act (amended by Act No. 8424, May 11, 2007; hereinafter referred to as the "Act") shall prohibit or punish a person who knowingly participates in an assembly or demonstration by prohibiting the hosting of "an assembly or demonstration clearly and directly harm public safety and order" and also imposes restrictions on a person who knowingly participates in an assembly or demonstration by prohibiting it from holding such assembly or demonstration for not more than 6 months or a fine not exceeding 50,000 won, or a minor fine not exceeding 50,000 won, or a person who knowingly participates in such assembly or demonstration by prohibiting or causing serious inconvenience to such assembly or demonstration in violation of Article 5 (1) 2 (2) of the Act.

Therefore, even though the Seoul National Police Agency notified that the assembly was prohibited, the act of the plaintiffs' participation in the assembly constitutes a criminal act if the above assembly prohibition disposition is legitimate, the police officer can take measures to prevent the crime in accordance with the Minority Act.

However, in order for the police officer's act to be a legitimate performance of official duties, the act must meet the legal requirements and methods for the specific performance of official duties, and Article 6 of the Act on the Election of Police Officers, which provides for the requirements for the exercise of police authority and the exercise of police authority for crime prevention, provides that if a police officer deems that a crime is about to be committed in front of the crime, he may issue a warning to the person concerned to prevent the crime, and prevent the police officer from doing the act in case of urgency because the act is likely to cause harm to human life and body or cause serious damage to property.

① As to whether a criminal act is deemed to have been committed in advance, even though the above provision is not a criminal law that is prohibited from extended interpretation due to the application of the principle of no punishment without the law, the same strict interpretation is required as well as the provision that limits the fundamental rights of the people. Therefore, it is reasonable to interpret that the act of participating in the assembly can be prevented in a case where it is obvious that the act of participation in the assembly is a criminal act and is in time and place close to another person at the time of the police's restraint measures.

However, as seen earlier, it is difficult to readily conclude that the plaintiffs' participation in the assembly was a criminal act at the time when the police officer recommended the permission to hold the assembly in a peaceful manner, while it is difficult to conclude that the plaintiffs' participation in the assembly was obviously a criminal act in a situation where the plaintiff's participation in the assembly was committed from 15:0 to 10 hours before five hours before the scheduled time of the assembly. In addition, it is difficult to see that the criminal act of participating in the illegal assembly was committed in Seoul at around 00 to 440 hours before the scheduled time of the assembly.

Then, according to the evidence submitted by the Defendant, it is difficult to conclude that the act of attending an assembly may cause harm to human life and body, property, or serious damage to property because it is likely to cause urgent harm to human life and body (see, e.g., Supreme Court Decision 2009Da14448, Apr. 2, 2009). The defendant's act of attending an assembly was in conflict between some participants in the assembly and police forces during several assemblies held before the assembly of this case, and police officers suffered bodily harm in the process. However, the previous assembly occurred in part of an assembly held before the 2th anniversary of the scheduled date of the assembly of this case in a nationwide manner. In light of the above acknowledged attitude, the defendant's organization, the organizer of the assembly, alone, cannot be seen as having caused harm to the human life and body of the plaintiffs, or there is no possibility that physical conflict between the participants in the assembly of Seoul urban center and the police forces, and there is no risk of physical harm or physical harm to the plaintiffs' body from the assembly of this case.

(3) In addition, the Act provides for matters necessary for police officers to perform their duties in order to protect the freedom and rights of the people and to maintain public order in society, and stipulates that the ex officio authority of police officers under the same Act shall be exercised to the minimum extent necessary to perform their duties and shall not be abused (Article 1(1) and (2). In addition, the Act declares the so-called principle of police vision that the principle should be maintained in proportion to the degree of the fundamental rights of the people restricted by the exercise of the police authority and the need to maintain order, compared to the degree of the fundamental rights of the people restricted by the exercise of the authority

Although it is difficult to deny that it can be more efficient and necessary to take measures to lower the number of participants who participate in the assembly as much as possible in order to reduce or diversify the number of participants who participate in the assembly as possible through police power when large-scale participants gather together at a specific place throughout the country.

However, it is difficult to readily conclude that the reason why the physical collision or violence incident occurred in the assembly or demonstration set on the day of the instant case was caused by the police’s ordinary measures, as seen above. As such, the Korea-U.S. Free Trade Agreement does not have a significant impact on the economy of our society.

Since the interests of the majority of the people can differ depending on their position, expression of opinion of the people with a negative view to the conclusion of the agreement should also be guaranteed to the maximum extent to realize democratic value of our society. Even in extenuating circumstances, exercise of police authority should be held within the extent that fundamental rights of the people, such as freedom of political expression, are not infringed in essence, within the scope that the fundamental rights of the people, such as freedom of expression of political opinion, etc., within the scope that is in accord with the ideology of our Constitution on guaranteeing fundamental rights, the plaintiffs resisting that the police authority is unreasonable in favor of Seoul where negotiations for free trade agreements are underway, and that the time when viewing the opinions and agreements of other participants in various assemblies and agreements with other people is also guaranteed (the exercise should also be exercised under restrictions such as maintenance of order, etc.). Furthermore, it is no more than necessary to take measures to prevent large-scale measures against the outdoor assembly of this case without any exception to the plaintiffs from infringing the plaintiffs' rights to express their opinions in order to protect them.

C. Therefore, since the police officer's act of this case does not meet the requirements for exercising police power under the Act on the Execution of Police Officers' Duties, it does not constitute an illegal performance of public duties. Therefore, it constitutes an illegal performance of public duties. Accordingly, the police officer has the duty to pay consolation money for mental suffering suffered by infringing the freedom of assembly and movement, such as the plaintiffs' freedom of expression of opinion.

Furthermore, the amount of consolation money shall be set at KRW 200,000, respectively, in consideration of all the circumstances, such as the health team, the status of the plaintiffs, the background of the ordinary conduct of this case, the nature of the infringed fundamental rights, etc.

4. Conclusion

Therefore, the plaintiffs' claims of this case are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges Yoon Don-do