[1] The legal interest protected by the law of general traffic obstruction and the act subject to punishment / The meaning of "land" as referred to in general traffic obstruction

[2] Whether general traffic obstruction is established in a case where an assembly or demonstration on a road entails traffic obstruction (affirmative in principle)

[3] In a case where participants attending an assembly or demonstration without a report under the Assembly and Demonstration Act obstruct traffic along the road by driving along the lane, etc., or where an assembly or demonstration which has completed a legitimate report under the same Act significantly exceeds the scope originally reported, or makes it impossible or considerably difficult to pass by interfering with road traffic by seriously violating the conditions under Article 12 of the same Act, whether general traffic obstruction is established (affirmative), and the requirements for establishing general traffic obstruction by participants (affirmative)

[4] Whether the general traffic obstruction constitutes an abstract dangerous crime (affirmative), and the timing and time of termination / Where the assembly causing traffic obstruction was participated in an assembly causing traffic obstruction, but the traffic flow has already been obstructed by other participants at the time of participation, the elements for establishing a general traffic obstruction by the participants

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

[1] Article 185 of the Criminal Act / [2] Article 21 of the Constitution, Article 185 of the Criminal Act / [3] Articles 30 and 185 of the Criminal Act, Articles 6 (1) and 12 of the Assembly and Demonstration Act / [4] Article 185 of the Criminal Act / [5] Article 2 subparagraph 2 of the Assembly and Demonstration Act

[1] [2] [4] Supreme Court Decision 2017Do11408 Decided January 24, 2018 (Gong2018Sang, 539) (Supreme Court Decision 2017Do16846 Decided February 28, 2018), Supreme Court Decision 2017Do9146 Decided May 11, 2018 (Gong2018Sang, 115) / [1] Supreme Court Decision 2003Do485 Decided October 10, 2010, Supreme Court Decision 2009Do1376 Decided February 25, 2010, Supreme Court Decision 2016Do12563 Decided April 7, 2017 / [205] Supreme Court Decision 2005Do1649 Decided May 16, 2015 (Gong2019Do3765 Decided April 16, 2017]

Defendant

Defendant

Law Firm Lee & Lee, Attorneys Yang Hong-soo et al.

Seoul Central District Court Decision 2016No1817 Decided December 23, 2016

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on general traffic obstruction

A. Article 185 of the Criminal Act provides, “A person who damages or destroys a road, waterway, or bridge, or obstructs traffic by any other means shall be punished by imprisonment with prison labor for not more than ten years, or by a fine not exceeding 15 million won.” The purpose of general traffic obstruction is to punish not only cases where a general traffic obstruction is a crime under the benefit and protection of the law of traffic safety by the general public, but also cases where a road, etc. is damaged or interfered with traffic by other means, and all acts that make it impossible or remarkably difficult to pass through by interfering with traffic (see, e.g., Supreme Court Decision 2003Do4485, Oct. 10, 203). The term “land” refers to a place for the traffic of the general public, i.e., a place of public nature in which an unspecified number of people, or a horse or horse can freely pass through without any specific person (see, e.g., Supreme Court Decision 200Do1376, Feb. 25, 201010).

Since the freedom of assembly and demonstration is a fundamental right of citizens guaranteed by the Constitution, in the event that a general traffic obstruction is applied to the participants in an assembly and demonstration, it may result in an unfair restriction on the freedom of assembly and demonstration. However, the general traffic obstruction may be established, barring any special circumstances, if it is accompanied by traffic obstruction even in the case of an assembly and demonstration, taking into account the fact that the general traffic obstruction method is comprehensively prescribed as above, and the possibility of directly infringing on the general public’s traffic safety when conducting an assembly and demonstration on the road.

In a case of an assembly or demonstration conducted without a report under the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”), where the participants who participated in the assembly or demonstration conducted without a report under the Assembly and Demonstration Act obstruct traffic along the road, or where the participants who participated in the assembly or demonstration which has completed legitimate reports under the Assembly and Demonstration Act significantly exceed the originally reported scope, or make it impossible or considerably difficult to pass through by interfering with road traffic by seriously violating the terms and conditions under Article 12 of the Assembly and Demonstration Act, it constitutes a general traffic obstruction (see, e.g., Supreme Court Decision 2006Do755, Nov. 13, 2008). However, even in such a case, all participants are not established with general traffic obstruction as a matter of course, and it does not constitute a direct act that causes traffic obstruction by significantly exceeding the reported scope, or by seriously participating in a serious violation of the conditions, or where the participants can be held liable for joint traffic obstruction in light of the participant’s circumstances or degree of participation, etc. (see, e.g., Supreme Court Decision 2016Do16).

On the other hand, general traffic obstruction is an abstract dangerous crime, where traffic is impossible or considerably difficult, and the result of traffic obstruction is not practically necessary (see Supreme Court Decisions 2004Do7545, Oct. 28, 2005; 2004Do7545, Oct. 28, 2005). In addition, traffic obstruction in general traffic obstruction continues to exist as it has the nature of continuous crime. As such, in the event of participation in an assembly causing traffic obstruction, if it is deemed that the traffic obstruction continues to exist in collusion with other participants who have caused traffic obstruction, at the time of participation, even if the traffic obstruction had already been obstructed by other participants, if it can be deemed that the traffic obstruction continues to exist in an implied and net manner (see, e.g., Supreme Court Decisions 2017Do1408, Jan. 24, 2018; 2017Do9146, May 11, 2018).

B. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and relevant legal principles and the evidence duly admitted by the first instance court, the lower court, on the grounds stated in its reasoning, found all of the charges of this case guilty, and rejected Defendant’s assertion of justifiable acts is justifiable. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the scope of application of the general traffic obstruction, the protected legal interest, the meaning of “land” as referred to in the general traffic obstruction, the meaning of “other methods,” and the lawful

2. As to the ground of appeal on the violation of the Assembly and Demonstration Act

A. Unlike the definition of the concept of a demonstration under Article 2 Subparag. 2 of the Assembly and Demonstration Act, there is no definition as to the concept of an assembly. However, an assembly subject to security and regulation under the Assembly and Demonstration Act refers to an assembly that “any specific or unspecified number of people form a common opinion and gather at a certain place under the purpose of expressing it externally” (see Supreme Court Decision 2011Do6301, Nov. 15, 201, etc.).

B. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the first instance court, the lower court was justifiable to have found the Defendant guilty of violating the Act among the facts charged in the instant case on the grounds indicated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine as to

C. This part of the ground of appeal as to whether the defendant's act of violation of the Assembly and Demonstration Act constitutes a justifiable act under Article 20 of the Criminal Act, as it is alleged in the ground of appeal that the defendant did not consider it as the ground of appeal or that the court below did not consider it as the subject of judgment ex officio. Furthermore, even if examining records, it is difficult to view

3. Conclusion

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

Justices Kwon Soon-il (Presiding Justice)