2018Do6605 A. Injury resulting from special obstruction of performance of official duties

(b) General traffic obstruction;

(c) Interference with business;

(d) Performance of official duties;

(e) Violation of the Punishment of Violences, etc. Act (joint residence intrusion);

(f) Violation of the Assembly and Demonstration Act;

1. (a) b. (c) d. A;

2. b. (f) B

3. b. e. C

Defendants

D Law Firm (For Defendant A and B)

Attorney E, F, G, H, I, J.;

K, L, M, N

Attorney Park Jong-soo (at-Law for Defendant C)

Supreme Court Decision 2015Do10109 Decided December 22, 2017

Busan High Court Decision 20188 decided April 12, 2018

December 28, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant A and B’s grounds of appeal

A. Article 8 of the Court Organization Act provides that “The determination made in a trial of a higher court shall bind the lower court as to the relevant case.” The latter part of Article 436(2) of the Civil Procedure Act stipulates that the court of final appeal shall bind the lower court in its factual and legal judgment which the court of final appeal considers as the ground for reversal. Although the Criminal Procedure Act does not have any express provision corresponding thereto, in light of the purport of the aforementioned legal provision, the existence of the tier system, and the fact-finding in the Supreme Court’s judgment in determining the grounds of final appeal, it is possible to intervene in the legitimacy of the lower court’s judgment as to the fact-finding, which has become the grounds for reversal of the judgment in the final appeal. Therefore, the court that was remanded from the final appeal after remanding the criminal case shall be bound by the factual and legal judgment presented by the final appeal court as the grounds for reversal (see, e.g., Supreme Court Decision 2008Do10572, Apr. 9, 2009).

B. On June 12, 201, the lower court affirmed the first instance judgment that found Defendant A and B not guilty of the violation of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) on the grounds that there was no legitimate dispersion order at least three occasions due to non-compliance with the dispersion order on June 12, 201. The prosecutor appealed against this order and appealed by the prosecutor, and the remand court reversed and remanded the case to the effect that the police broadcast could be deemed a lawful dispersion order, on the ground that the police broadcast could be seen as a lawful dispersion order, since the police broadcast could be seen as a legitimate dispersion order. After remanding the case, the lower court found Defendant A and B guilty of the violation of the Assembly and Demonstration Act due to non-compliance with the dispersion order on June 12, 2011.

C. Examining in light of the aforementioned legal principles, the lower court’s judgment is justifiable in accordance with the binding force of the judgment remanded. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the dispersion order as prescribed by the Assembly and Demonstration Act,

2. As to the grounds of appeal by Defendant C, the lower court upheld the first instance judgment convicting Defendant C of the violation of the Punishment of Violences, etc. Act (joint residence intrusion) on the grounds indicated in its reasoning, and of violation of the Act on Punishment of Violences, etc. (joint residence intrusion) on July 9, 201, the general traffic obstruction on July 9, 201, and the violation of the Act on Punishment due to non-compliance with the command of dissolution on July 31, 201.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine regarding entry of structures, general traffic obstruction, and dispersion order without conducting necessary deliberation, contrary to what is alleged

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 Ki-taik

Justices Park Il-san

Jeju High Court Justice Kim Jong-soo