Do 2015 No. 10109 A. Injury that interferes with the execution of special duties

(b) interference with general traffic;

(c) Interference with business;

(d) interference with the performance of official duties;

(e) Violation of the Act on Punishment of Violence, Etc. (Joint Intrusion upon Residence);

F. Violation of the Assembly and Demonstration Act

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

2. b. (f) B

3. A. b. e. C

Defendant and Prosecutor (as to all Defendants)

D Juristic person (in order to hear defendants)

Attorney E, F, G in charge

H (for Defendant B, a legal entity)

Attorney I, J, K, L

Attorney M (for defendant C)

Busan High Court Decision 2014866 decided June 11, 2015

December 22, 2017

Of the judgment of the court of first instance, the part of the judgment of conviction against Defendant A and the part of the verdict of not guilty on June 12, 201, each of the violation of the Assembly and Demonstration Act, the part of the judgment of conviction against Defendant B, and the part of the judgment of conviction against Defendant C due to the non-compliance with the dissolution order issued on June 12, 201, shall be reversed, and this part of the case shall be remanded to the Busan High Court.

The Prosecutor’s remaining appeals against Defendant A and the appeals against Defendant C are dismissed, respectively.

The grounds of appeal are determined.

1. As to the defendant's appeal on the violation of the Assembly and Demonstration Act due to non-compliance with the second N's dissolution order

A. Article 20(1) of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) provides that “The head of the competent police agency may demand voluntary dispersion within a reasonable period of time with respect to an assembly or demonstration that falls under any of the following subparagraphs, and order dispersion if he/she fails to comply with such demand.” Article 20(2) provides that “All participants shall, upon receipt of an order to dissolve an assembly or demonstration under paragraph (1), be dissolved without delay.” Under the interpretation of the relevant provision, all participants shall be subject to dissolution. When a police officer’s order to dissolve an assembly or demonstration is issued, the reason for dissolution shall be specific if it falls under any of the subparagraphs of Article 20(1) of the Assembly and Demonstration Act (see, e.g., Supreme Court Decision 200Do1314, Feb. 29, 2012).

B. Of the facts charged against Defendant B, the summary of the violation of the Assembly and Demonstration Act due to the failure to comply with the orders for dissolution related to “2j N” among the facts charged in the instant case is as follows: (a) Defendant participated in the demonstration on July 9, 201 around 22:50 and around 7,000 on July 9, 201; (b) went into the direction of Qua by occupying the lane prior to the front road of the P Assembly members located in the Young-gu Busan Metropolitan City (hereinafter referred to as “instant demonstration” in paragraph (1)); and (c) on the ground that it is an unreported assembly, it was a reduced R as delegated by the chief of the competent police officer on July 23, 201 from July 16, 201 to July 7, 2011.

10. It is the flag that no dissolution was made without delay upon receipt of an order for dissolution with three times until around 00:26.

However, even after examining all evidence duly adopted by the first instance court and the first instance court, there is no evidence showing that R’s order was issued for dissolution on the ground that R’s instant demonstration constitutes “unreported Assembly” as the facts charged by the Prosecutor. Rather, R is from July 23:16, 201 to July 10, 201.

Until around 00:26, "an illegal act of occupying and occupying a road" b. It can be known that the order of dissolution was issued for reasons different from "an act of occupying and occupying an illegal road".

Nevertheless, on the grounds as indicated in the judgment below, the court below held that the dissolution order issued at least three times in the R reduction constitutes a dissolution order meeting legitimate requirements, and held that this part of the public prosecution against the defendant Eul constitutes a conviction. The judgment of the court below is erroneous by misapprehending the legal principles on dissolution order under Article 20 (1) of the Assembly and Demonstration Act and failing to exhaust all necessary deliberations, which led to the conclusion of the judgment. The ground for appeal that pointed out this point is with merit.

2. As to Defendant A’s remaining grounds of appeal

A. Examining the grounds of appeal as to "1 N"-related facts in light of the relevant legal principles and evidence duly adopted by the original judgment and the court below and the first instance court, it is reasonable to determine that the violation of the Act on Promotion of Night Demonstration related to "1 N" (hereinafter referred to as the "Act on Punishment of Violence, Etc.") due to the violation of the Act on Punishment of Violence, Etc. (hereinafter referred to as the "Act on Punishment of Violence"), among the facts charged in this case against Defendant A on the grounds as shown in the judgment of the court below, each of the violation of the Act on Punishment of Violence, Etc. (hereinafter referred to as the "Act on Punishment of Violence"), on the grounds of the reasoning of appeal, is recognized, and there is no error of law by going beyond the limit of free evaluation of evidence by violating the law of logic and experience, or by misapprehending the legal principles such as the elements of a traffic obstruction or the formation of a political party, intrusion upon a residence, and other relevant legal principles.

B. On the grounds of appeal as to the second N-related facts of the crime, the court below held that the second N-related general traffic obstruction of Defendant A among the facts charged against Defendant A, the second N-related general traffic obstruction, the violation of the Assembly and Demonstration Act by hosting a unreported assembly, and the injury or injury caused by obstructing the performance of special public duties, on the grounds of the same reasons as the judgment in its holding.

Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly adopted by the original judgment and the original judgment and the first instance judgment, the judgment of the original court is just and acceptable, and there is no illegality such as violating the legal rules of logic and experience and exceeding the limit of free evaluation of evidence, such as the allegation of the grounds of appeal, or failing to conduct a necessary deliberation by misunderstanding the requirements for composition of a crime of interference with general traffic, acts of political parties, joint principals for public offering, and other relevant legal principles.

C. Examining the reasoning of the final appeal on August 10, 2010, in light of the evidence duly admitted by the first instance court and the first instance court on the grounds of the first instance judgment, the lower court’s judgment is justifiable to have determined that the part of the charge charge of Defendant A’s failure to perform official duties on August 10, 2010 among the facts charged against Defendant A, on the grounds as indicated in its judgment, should be recognized, and at the same time, there is no illegality, such as going beyond the bounds of free conviction due to the violation of the logic and experience legal rules or failing to exhaust all necessary deliberations, as alleged in the grounds of final appeal.

3. On the grounds of the remaining appeal by Defendant B, the court below held that the first N among the facts charged against Defendant B of this case on the grounds of the judgment below, the first N's violation of the Assembly and Demonstration Act due to participation in the night demonstration, general traffic obstruction, and crime of violence (joint residential intrusion), and the second N's violation of general traffic obstruction.

Examining the reasoning of the original judgment in light of the evidence duly adopted by the original judgment and the first instance judgment, the judgment of the original judgment is just and acceptable, and there is no illegality that affected the conclusion of the judgment by misapprehending the legal principles on general traffic obstruction, joint residential intrusion, etc. as alleged in the grounds of appeal.

4. As to the prosecutor's appeal

A. On June 12, 2011, as to the grounds for appeal as to the violation of the Act due to the failure to comply with the dissolution order ( related to '1 N'), the lower court rendered a judgment not guilty of the violation of the Act due to the failure to comply with the dissolution order on June 12, 2011. (1) On the grounds of the same reasons as the judgment in its holding, the Busan Young-do Police Station SP from 00:40 on June 12, 2011 to 02:08 on the same day cannot be deemed as a legitimate dispersion order. (2) On the ground that the broadcast of this case against Defendant A and B cannot be deemed as a legitimate dispersion order.

(2) However, it is difficult to accept the judgment of the court below for the following reasons.

According to the evidence duly adopted by the lower court and the first instance court, ① the demonstration of this case was not reported and continued beyond 24:00 on June 11, 201, and ② S is located from the police broadcast vehicle around 00:36 on June 12, 201 to 02:08 on 111 occasions in total.

Many participants of the assembly and several minutes of the assembly are conducting an illegal demonstration which has not been reported at night. Voluntary dispersion and return home to the main time. “The broadcast of the content was made, and the same content was repeated once. ③ The electronic sign board installed outside of the police broadcast vehicle in S was clearly marked “the first dispersion order or the nine dispersion orders”, ④ approximately 400 participants of the instant demonstration began to conduct a demonstration before Q Jongmun and go to the Republic of Korea from 40:45 on June 12, 201 to 20:0 on the same day, and part of the participants from 25:0 to 3:0 on the same day start to participate in the demonstration or to 1:0 on the other hand, and from 3:0 on the same day, the participants of the instant demonstration were informed of the first dispersion order or the nine dispersion order.

In light of the progress of the instant demonstration, the contents of the police broadcast and the electric sign board, the interval and frequency of the broadcast, and the situation of the demonstration at the time of the broadcast, etc., the instant demonstration constitutes an unreported night demonstration. Although the request by the police officer for voluntary dispersion was made to the participants of the instant demonstration, the participants of the demonstration did not comply with the request by the police officer for voluntary dispersion, and the participants of the instant demonstration go through Q Q and go beyond Q and go beyond Q and go beyond Q’s fence, etc., which clearly resulted in direct danger to the public order and order, and the participants of the demonstration were sufficiently informed of the fact that they were subject to dispersion orders by the police officer under Article 10(1) of the Enforcement Decree of the Assembly and Demonstration Act. Accordingly, it is probable that the police officer’s aforementioned circumstances and the frequency of dispersion orders by the police officer after the aforementioned legitimate broadcast order were to be considered as legitimate.

Nevertheless, the lower court determined that it cannot be deemed a legitimate order for dissolution of a police broadcast for the same reason as indicated in its holding. In the original judgment, the lower court erred by misapprehending the legal doctrine on dissolution orders under Article 20(1) of the Assembly and Demonstration Act and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation of the grounds for appeal by the purport of pointed out this point is with merit.

B. Examining the reasoning of the original judgment as to the remaining grounds for appeal in light of the record of the reasoning of the original judgment, for the same reasons as the judgment of the court below, it is justifiable to view that the remainder of the charge charge against the Defendant on June 12, 201, excluding the charge of violation of the Act due to the non-compliance with the order of dissolution issued by the person on June 12, 201, constitutes a case where there is no proof of the facts of the crime, and to determine all of the charges as not guilty. It is not erroneous in the judgment of the court below as to the remaining grounds for appeal by violating the logic and experience law, such as the allegation of the grounds for appeal, thereby exceeding the limit of the attention of free evaluation of evidence, or failing to exhaust all necessary deliberations.

On the other hand, the prosecutor appealed against the guilty portion of the judgment of the original court, but there is no specific grounds for appeal as to the petition of appeal or the grounds for appeal.

5. Conclusion

As such, the part of the judgment of the court of first instance on the facts charged against Defendant B should be reversed. The judgment of the court of first instance on the premise that this part of the judgment of the court of first instance and the remaining facts of the crime are in concurrent crimes under the former part of Article 37 of the Criminal Act, and that one sentence is imposed against Defendant A, and that one sentence is imposed against Defendant B and C, and maintained the judgment of the court of first instance (the judgment of the court below on the guilty part of the judgment of this case against Defendant B was in substantial concurrent relations between the first N's violation of the Act due to the participation in the night-time demonstration and the general traffic obstruction caused by the assembly and demonstration, but it is pointed out that it is reasonable to view that the general traffic obstruction established by the assembly and demonstration and the aforementioned conflicts are reasonable (the judgment of the court below on the guilty part of this case against Defendant B).

8. 25. See Supreme Court Decision 2008Do10960 Decided 25, 2008, etc.)

Therefore, among the judgment of the court of original instance, the guilty part against Defendant A and the innocent part on June 12, 201, each of the violation of the Act, the part on Defendant B related to Defendant B, and the guilty part on Defendant C related to Defendant C due to non-compliance with the order of dissolution on June 12, 2011, and the case on this part is remanded to the court of original instance for further proceedings consistent with this Opinion, and the prosecutor's remaining appeals against Defendant A and the appeal against Defendant C are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il

Justices Ko Young-han

Justices Jo Hee-de

Justices Cho Jae-chul