208Do6032 A. Injury resulting from special obstruction of performance of official duties

(b) General traffic obstruction;

(c) Damage to public goods;

(d) Violation of the Assembly and Demonstration Act;

CE

Defendant and Prosecutor

Attorney BN, PH

Seoul High Court Decision 2006No1719-3 (Separation), 2219, 207No2938-1 (Separation), 2008No717 (Consolidation) Decided June 27, 2008

October 15, 2014

The conviction part of the judgment below is reversed, and that part of the case is remanded to the Seoul High Court.

The prosecutor's appeal is dismissed.

1. We examine the grounds of appeal.

A. As to the Defendant’s ground of appeal

After compiling the adopted evidence, the court below acknowledged the facts as stated in its holding, and determined that the defendant is liable as co-principal for the violation of the Assembly and Demonstration Act (the holding of prohibited assemblies and non-reported outdoor assemblies) and the charges of causing special obstruction of performance of official duties on 12 occasions from JM to IPs.

In light of the relevant legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles regarding joint principal offenders or exceeding the bounds of the principle of free evaluation of evidence

B. As to the Prosecutor’s Grounds of Appeal

The lower court reversed the part of the first instance judgment convicting the Defendant of this part of the facts charged and acquitted, on the grounds that it cannot be deemed that there was evidence of a crime on the facts charged of interference with general traffic of IP holders, HUs, IDA, ID, IK, JO, IO, and IP holders.

In light of the relevant legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on joint principal

On the other hand, although the prosecutor submitted a written appeal to the effect that he/she is dissatisfied with the remainder of innocence among the judgment below, he/she did not state the grounds for appeal on that part.

2. The decision shall be made ex officio;

The lower court affirmed the first instance judgment that convicted the Defendant of the violation of the Assembly and Demonstration Act of the violation of Article 20 subparag. 1 and the main text of Article 10 of the former Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007; hereinafter referred to as the “former Assembly and Demonstration Act”) among the charges of this case against the Defendant.

On April 24, 2014, which was following the pronouncement of the lower judgment, the Constitutional Court rendered a decision that Article 10 of the former Assembly and Article 10 of the former Assembly and Article 20 subparag. 3 of the former Assembly and Demonstration Act apply to an outdoor assembly or demonstration from sunset to 24 days from the same day.

Such decision of the Constitutional Court is deemed to have the purport of partial unconstitutionality that the part of "from sunset time after sunset to 24:00 on the same day" among the above part concerning " outdoor assembly or demonstration under Article 20 of the former Assembly and Demonstration Act is in violation of the Constitution. As such, Article 47 of the Constitutional Court Act has the effect as a decision of unconstitutionality as prescribed by Article 47 of the same Act. Furthermore, Article 20 of the former Assembly and Demonstration Act is based on the common punishment of the part of the outdoor assembly or demonstration under Article 10 of the former Assembly and Demonstration Act. However, the statutory punishment is different depending on whether the person who hosts the outdoor assembly or demonstration at night (No. 1) or is a simple participant (No. 3). Therefore, the above decision of the Constitutional Court is related to the participant under Article 20 of the former Assembly and Demonstration Act, but its decision of unconstitutionality as to the above part during the night-time outdoor assembly among those under Article 10 of the former Assembly and Demonstration Act.

Therefore, among the above provisions on the outdoor assembly under the former Assembly and Demonstration Act, the part on the "from sunset time to 24:00 on the same day" becomes retroactively null and void pursuant to the proviso of Article 47 (2) of the Constitutional Court Act. Thus, each part on the violation of the Assembly and Demonstration Act committed by the defendant who was prosecuted by applying the above provision of Article 47 (2) of the Constitutional Court Act constitutes a case where it does not constitute a crime, and therefore, the part on which the court below found him guilty of this part of the facts charged

3. As seen above, among the judgment below, the part of the crime of violation of the Act due to the hosting of each night outdoor assembly against the Defendant cannot be maintained. The court below rendered a single sentence against the Defendant on the ground that the charges charged and the remainder of the charges found guilty are concurrent crimes under the former part of Article 37 of the Criminal Act. As such, the part of the judgment of the court below against the

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. The prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Justices Lee In-bok, Counsel for the appeal

Justices Kim Yong-deok

Justices Kim Gin-young