[1] Where a public official’s collective expression of opinion constitutes a “collective act for any day other than public service” prohibited under Article 66(1) of the State Public Officials Act, and the standard for determining such act

[2] In a case where the Defendants, a teacher, were indicted of violating the former State Public Officials Act by promoting and actively participating in the assembly and demonstration at first and second assembly and demonstration at the Korean Teachers’ Union level in collusion with the executives of the Korean Teachers’ Union, and “a collective act for an act other than official duties” by actively participating in the assembly and demonstration at the same time, the case affirming the judgment below convicting the Defendants on the ground that the above act constitutes “a collective act for an act other than official duties” prohibited under Article 66(1) of the Act

[3] Whether the order of dissolution and punishment for non-compliance can be imposed on the sole ground that the assembly or demonstration was an outdoor assembly or demonstration not reported under the Assembly and Demonstration Act (negative)

[1] [Majority Opinion] In the case of teachers who are public officials, freedom of political expression is guaranteed, but in light of the constitutional spirit that declares the political neutrality and educational neutrality of public officials and the purport of relevant statutes, freedom of political expression is bound to be limited within a certain scope. This is the limitation that public officials, who are public officials, should assume the status of teachers. Furthermore, in a case where the political expressive act of teachers, which is public officials, is conducted in a large scale by entirely putting their teachers into their status, evaluation is required taking into account the ripple power over educational sites and society. Therefore, in a case where a public official’s expression of opinion constitutes a specific political act prohibited against public officials under the State Public Officials Act or other individual Acts, such as the Public Official Election Act, or where a public official’s expression of opinion constitutes a specific political act prohibited against public officials, such as a direct expression of support or opposition to a specific political party or political force, and where such act is deemed to have reached the degree of direct danger and injury that may infringe on the political impartiality of public officials, such act should not be considered as an act going against the duty of public officials and its nature and form of political neutrality.

[Dissenting Opinion by Justice Park Ill-sook, Justice Jeon Soo-ahn, Justice Lee In-bok, Justice Lee Sang-hoon, and Justice Park Poe-young] To commit an act in violation of Article 66(1) of the State Public Officials Act, the meaning of “an act in violation of the public interest” should first be “an act in violation of the public interest.” The meaning of “an act in violation of the public interest” is comprehensive, abstract, and large, so it is difficult to objectively determine its contents through ordinary interpretation of the law enforcement agency. In this respect, in order to achieve harmony with the freedom of expression guaranteed by the Constitution, it should be narrowly interpreted. In this context, the purport of Article 66(1) of the State Public Officials Act is also the basis for such restrictive interpretation. Ultimately, the existence of “an act in violation of the public interest” should be recognized only where the act in question conflicts between the entire people and the group of public officials’ interests, thereby infringing on the people’s trust in performing public duties, such as interfering with the overall interest of the public, or where the concept of “an act in violation of public interest” does not have any inherent duty.

[2] [Majority Opinion] In a case where the Defendants, as teachers, were indicted on charges of violating the former State Public Officials Act (amended by Act No. 10148, Mar. 22, 2010; hereinafter “State Public Officials Act”) on the grounds that they conspired with the Defendants of the Korean Teachers’ Union and Staff Workers’ Union (hereinafter “former Teachers’ Union”) and criticize government policies and government administration in 2009 and urged government reform (hereinafter “First Assembly Declaration”) and subsequently, the Second Assembly Declaration demanded the guarantee of freedom of expression and the suspension of carbon pressure (hereinafter “Second Assembly Declaration”) and actively participated in the Declaration, and “collective act for activities other than public duties” was committed, and thus, the Defendants’ failure to perform duties beyond the duty of public officials or to interfere with political neutrality is justifiable in view of the following reasons: (a) the Defendants’ failure to perform duties other than the first and second Assembly Declaration was against the duty of public officials, and thus, it constitutes a violation of the State Public Officials Act’s duty of political neutrality or political character of teachers as public officials.

[Dissenting Opinion by Justice Park Poe-young, Justice Jeon Soo-ahn, Justice Lee In-bok, Justice Lee Sang-hoon, and Justice Park Poe-young] 1 and the Second Declaration was a similar declaration of assembly or demonstration, demanding improvement or demand to guarantee the freedom of expression related to a specific case’s policy or state administration. It is merely a fundamental right guaranteed by the Constitution. Such freedom of expression is the basic premise of the free fundamental order guaranteed by the Constitution. It cannot be deemed as a representation for the interests of the group of “school teachers or teachers who participated in the assembly or demonstration,” which is the subject of the declaration of assembly or demonstration. It does not interfere with the benefit-making of the entire nation. It does not infringe on the people’s trust in performing public duties or infringe on the essence of the democratic and professional public service system. In short, the Defendants’ involvement in the First and Second Declaration does not constitute a collective act prohibited by Article 66(1) of the State Public Officials Act, but does not constitute a “collective act” prohibited by the State Public Officials Act.

[Dissenting Opinion by Justice Shin Young-chul] In light of the fact that the motive behind the First Declaration was political, and the time of the Declaration was directly connected to the political situation, and the contents of the Declaration are prejudicial to the political neutrality of the public official, the Defendants’ leading act constitutes collective act for purposes other than public duties prohibited by the State Public Officials Act. However, the primary motive or purpose of the Second Declaration is to demand the withdrawal of criminal complaints or disciplinary measures against teachers, and it is difficult to view that there was political intent or purpose such as the first Declaration, and its contents also criticizes the government’s strong response and educational policy and demands the guarantee of teachers’ freedom of expression. In light of the above, the Second Declaration constitutes the act of expression at an ordinary level to demand the withdrawal of criminal complaints or disciplinary measures against the teachers who participated in the First Declaration, and the Defendants’ act related to the Second Declaration constitutes a collective act prohibited by the State Public Officials Act with a view to violating the public interest.

[3] [Majority Opinion] In full view of the constitutional value and function of the freedom of assembly, the constitutional spirit that declared the prohibition of permission for assembly, the purport of the prior report system on outdoor assembly and demonstration, etc., the report is intended to provide specific information on assembly to an administrative agency to cooperate with the maintenance of public order. Thus, it cannot be readily concluded that an outdoor assembly or demonstration is not allowed to be held beyond the scope of protection of the Constitution solely on the ground that the report was not filed. Thus, even if Article 20(1)2 of the Assembly and Demonstration Act does not provide for separate dispersion requirements while it targets an outdoor assembly or demonstration subject to dispersion order, the report may be ordered to dissolve pursuant to the above Article only if it clearly causes a direct danger to another person’s legal interest or public safety and order, and only if it refuses to comply with the dispersion order meeting such requirements, it shall be punished pursuant to Article 24 subparag. 5 of the Assembly and Demonstration Act.

[Dissenting Opinion by Justice Jeon Soo-ahn] A dispersion order against an unreported assembly shall be permitted only when the assembly poses a direct, clear, and present and specific danger to the legal interests of others or other public peace and order. Above all, it is important to strictly apply the standards in individual cases where the legitimacy of the dispersion order against the unreported assembly is at issue, and it shall not be operated as if the possibility of the occurrence of danger meets the above standards.

[1] Articles 7, 21(1), and 31(4) of the Constitution of the Republic of Korea; Articles 57, 65, and 66(1) of the State Public Officials Act; Articles 6(1) and 14(4) of the Framework Act on Education / [2] Article 30 of the Criminal Act; Article 66(1) of the State Public Officials Act; Article 84 of the former State Public Officials Act (Amended by Act No. 10148, Mar. 22, 2010) / [3] Article 21(1) and (2) of the Constitution of the Republic of Korea; Articles 6(1), 20(1)2 and (2), 22(2), and 24 subparag. 5 of the Assembly and Demonstration Act

[1] Supreme Court Decision 90Do2310 Decided February 14, 1992 (Gong1992, 1078), Supreme Court Decision 2003Do2960 Decided April 15, 2005 (Gong2005Sang, 783), Constitutional Court en banc Decision 2003Hun-Ba51, 2005Hun-Ga5 Decided August 30, 2007 (Hun-Ga131, 936) / [3] Supreme Court Decision 2008Do3974 Decided October 23, 2008 (Gong2008Ha, 1642), Supreme Court en banc Decision 2009Do13846 Decided October 13, 201 (Gong2011; Constitutional Court en banc Decision 2003Hun-Ba386 Decided August 36, 2008)

Defendant 1 and two others

Defendants

Attorney Kang Young-gu et al.

Daejeon District Court Decision 2010No618 Decided May 14, 2010

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendants’ ground of appeal on the violation of the State Public Officials Act

A. Violation of the principle of an indictment only

The principle of an indictment only shall be submitted when a public prosecutor institutes a public prosecution and shall not attach documents or other things that may cause prejudice to the court on other cases (Article 118(2) of the Rules on Criminal Procedure). The principle of an indictment only includes “Prohibition of entry of other facts” that may cause prejudice to the court as a fact other than the facts required by law. Whether the violation of the principle of an indictment only is included in the contents of the indictment, such as documents or other things attached or quoted in the indictment, and whether the facts other than those required by law may hinder the judge or jury to grasp the substance of the crime (see, e.g., Supreme Court en banc Decision 2009Do7436, Oct. 22, 2009).

Of the facts charged in violation of the State Public Officials Act, the part that the Defendants pointed out in the grounds of appeal is to clarify the motive, circumstance, etc. leading up to the “collective act for the purpose other than official duties” under Article 66(1) of the State Public Officials Act. Thus, it cannot be deemed as a violation of the principle of an indictment only by pointing out the reasons why such a statement may cause prejudice to the court.

In the same purport, the court below is just to determine the substance of the facts charged against the defendants, and there is no error of law by misapprehending the legal principles as to the principle of an indictment only, as otherwise alleged in the ground of appeal. The ground of appeal on this part is

B. Point of collective action under the State Public Officials Act

(1) Article 7(1) of the Constitution provides that “A public official shall be a volunteer to the entire citizens and shall be responsible to the citizens.” As such, a public official is in a special position to be responsible to work for the public interest as a servant of the entire citizens. Therefore, for the benefit of the entire citizens, a public official is responsible to faithfully perform his/her duties in accordance with the Constitution and laws for the benefit of the entire citizens. The public official’s duties are guaranteed public nature, fairness, integrity, and neutrality. To realize this, the Constitution places restrictions on fundamental rights, unlike other general citizens, such as guaranteeing the right to organize as a public official only for workers who are prescribed by Act.” In Article 66(1) of the State Public Officials Act, “Public officials shall not engage in labor campaign or any collective action for activities other than public duties.” In addition, restricting the freedom of speech and publication of public officials and the freedom of assembly and association of public officials, and prohibiting collective action for activities other than public duties may interfere with the overall interest of all citizens by representing the interests of the group of public officials.”

However, Article 21(1) of the Constitution guarantees the freedom of speech by stipulating that “all citizens shall enjoy the freedom of speech and press, and have the freedom of assembly and association.” The freedom of expression is the basic right that humans maintain their dignity, and it is also the same for public officials. In the case of public officials, it is necessary to restrict the freedom of expression rather than the general public in light of their status and the nature of their duties. However, even in the case of public officials, it shall not be limited to a uniform or full-time area on the grounds of public nature or necessity, and even if the grounds for restriction exist, the restriction shall be limited to a minimum possible extent and shall not infringe on the essential contents of the right. Therefore, even if it is determined that it is inevitable to restrict the restriction, the restriction shall not be limited to a minimum extent, and it shall not infringe on the essential contents of the right. Thus, even if the main sentence of Article 66(1) of the State Public Officials Act provides that “collective acts for days other than public service,” this shall not mean all collective acts conducted by public officials for any day, but shall be construed as 20.

However, Article 7(1) of the Constitution provides that a public official is a volunteer of the entire nation, and furthermore, Article 7(2) provides that “the status and political neutrality of a public official shall be guaranteed under the conditions as prescribed by Act.” Accordingly, a public official must pursue public interest in a political neutral position, must be independent of a political force pursuing a specific political and fact-finding interest, and a public official shall not engage in any act that may affect or may affect the political neutrality of performing his/her official duties. Article 65 of the State Public Officials Act and Article 57 of the Local Public Officials Act which prohibit a public official’s political activities, and Articles 9(1), 60(1), 85(1), and 86 of the Public Official Election Act which prohibit an act that may affect the election campaign or election of a public official are all regulations to realize this.

In addition, Article 31(4) of the Constitution provides that “The autonomy, speciality, and political neutrality of education and the autonomy of universities shall be guaranteed under the conditions as prescribed by the Act.” The political neutrality of education is the basic principle of the Constitution to ensure the autonomy and autonomy of education by excluding political and political intervention and control over education. To secure this, teachers should be guaranteed their status so as not to be unfairly affected by the nature of education by their political forces, etc., while refusing such impact and are also obliged to maintain political impartiality (see Constitutional Court en banc Decision 89Hun-Ga106, Jul. 22, 1991). Accordingly, teachers should be able to grow to democratic citizens without being buried in a biased ideology or political view, and such political neutrality of education should not be guaranteed autonomously under the responsibility of teachers, given that education is not only a legitimate and non-permanent school teacher’s activities but also a specific educational neutrality to ensure that it is not a legitimate and non-permanent school teacher’s activities (see Article 16(1) of the Education Act).

Therefore, in the case of teachers who are public officials, freedom of political expression shall be guaranteed, but in light of the constitutional spirit that declares the political neutrality and the political neutrality of education of public officials as above and the purport of relevant statutes, the freedom of political expression may be limited within a certain scope. This is the limit to the public officials who are guaranteed status by the Constitution. Furthermore, in a case where the political expressive act of teachers who are public officials is done in a large scale collectively with the status of teachers, it is necessary to assess it in consideration of the ripple effect on educational sites and society.

Therefore, in a case where the expression of opinion by a teacher who is a public official constitutes a specific political activity prohibited against a public official under individual laws, such as the State Public Officials Act or the Public Official Election Act, or where it is deemed that an act clearly revealing a specific political character or a political party or political force, such as directly expressing a support or opposition to a specific political party or political force, which may cause a direct danger that may infringe on the political impartiality of public official, such act is deemed to go beyond the original part of a teacher who is a public official, and thus, constitutes an act contrary to the public interest and detrimental to the discipline of a public official’s duties or undermining the essence of a public official’s duties, and thus, it is reasonable to deem that it constitutes a “collective act for any purpose other than public duties” prohibited by Article

In this context, it cannot be uniformly determined to the extent that any act may cause a direct danger that may infringe on political neutrality. In addition to the specificity of the status of public officials and teachers who need political neutrality by the Constitution, the determination should be made by comprehensively taking into account various circumstances related to the act in question, such as the motive or purpose of the act in question, the time and background thereof, the political and social background at the time of the act in question, the contents and method of the act in question, and

(2) First, we examine the First Declarations.

(A) Examining the reasoning of the lower judgment as to the First Declaration and the facts revealed by the evidence duly admitted by the lower court in light of the legal doctrine as seen earlier.

① At the time of the First Declarations, the Assembly was announced on May 28, 2009 by the Social Personnel 100 and the Assembly was announced. On June 9, 2009, the National Democratic Trade Union Federation (hereinafter “Public Workers’ Union”) was under the control of the Assembly and Demonstration, and thus, the government’s policy and government administration at the time of the assembly and demonstration was criticized and demanded for government reform.

② The Korean Teachers’ Union (hereinafter “Korean Teachers’ Union”) also held the 360 Central Execution Committee (the 360th Central Executive Committee, the executive officers of the headquarters, the Vice-Chairperson, the Vice-Chairperson, the head of policy office, the head of editing office, and the head of a City/Do branch nationwide, etc.) in recognition of such situation and with Defendant 1’s participation on June 9, 209, it is important to lead to the present situation in relation to the special election in October 2009 and the local election scheduled in 2010. Under the explanation of the 2010, it is necessary to conduct the strike by territory. The 6 and 10th National Assembly’s demand from citizens, labor organizations, etc. was high likely to be divided into several classes, and the Defendants’ organization and 16th National Assembly members participated in the affairs of the Assembly by taking advantage of the 16th National Assembly and Demonstration’s general affairs.

The Assembly’s First Declaration includes the contents that point out and criticize the problems of educational policies, such as increase of the burden of private education expenses, participation in competition education, education polarization, etc. However, it is unreasonable to conduct a candlelight assembly and a diversity investigation, using the expression “an abuse of public authority,” which leaves the time of the military regime. Fire accidents at the 4th area removal site, which occurred in January 2009, are also a fluorated suppression of the police, and national land development projects and policies against North Korea, and it is criticized to the purport that the operation of the dics registry state faces the crisis of democracy, and the future of the nation is threatened with danger, such as the threat of the people’s survival and the people’s ecology, ecology, peace, etc., and the government is facing the general resistance, and the government is urged to fully reform the state administration.

This is an obvious political intention that the executives of the Jeon school headquarters and the branch have an influence on the election or the establishment of the current political power cable, and unilaterally evaluate and attack the exercise of public authority and major policies from a biased standpoint by lending the form of the assembly and demonstration. As such, it is a clear collective assertion of objection against a specific political force that leads the state administration beyond the limit of political neutrality.

③ The First Declaration was conducted with the organization of the Jeon school’s headquarters and branch, as planned and organized by teachers, including the union members of the Jeon school group, to participate in the signature of the Assembly. On the other hand, despite the demand by the Ministry of Education, Science and Technology, the Jeon school group took place with the teachers’ participation in the signature of the Assembly. Furthermore, the Assembly’s status as teachers was revealed and announced publicly by opening the speech meeting and announcing the list of sign teachers in the former school’s newsletter.

④ Unlike university teachers who are allowed to join a political party and engage in election campaign, political neutrality is prohibited (Article 22(1)2 of the Political Parties Act and Article 60(1)4 of the Public Official Election Act). Unlike university education, teachers of elementary and secondary schools shall educate students as prescribed by statutes (Article 20(3) of the former Elementary and Secondary Education Act before being amended by Act No. 10914, Jul. 25, 201). As such, the nature or content of duties between elementary and secondary school teachers and university teachers and their influence on students is different from those of university teachers who are allowed to join a political party and engage in election campaign (Article 22(1)2 of the Political Parties Act and Article 60(1)4 of the Public Official Election Act). Thus, even if a public university was conducted at a national or secondary university on the same line, the First Declaration cannot be evaluated as having been placed on the same line.

⑤ In addition, the Defendants led not only the members of the Daejeon District Office but also non-members of the First Assembly and Demonstration to participate in the First Assembly and Demonstration with the above contents on the school site. Such acts may not be denied that the Defendants may interfere with the teachers’ performance of official duties and cause the risk of affecting the educational environment of students by changing the school as a political public figure.

(B) In full view of the circumstances such as the purpose of planning and promotion of the First Declaration, its timing and contents, the characteristics of teachers at elementary and secondary schools, the method of promotion and its influence, etc., the Defendants’ act in collusion with other former and secondary teachers in relation to the First Declaration was clearly against a specific political force by collectively exercising the intent or critical influence on the government’s decision-making and enforcement of major policies with a clear political purpose or intent. As such, the Defendants’ act in collusion with other former and secondary teachers is an act of clarifying the intent against a specific political force. Thus, it is an act of infringing on the political neutrality of teachers who are public officials, and the public trust thereof, or by clarifying the political orientation or legitimacy to the extent that direct risk of infringement.

Therefore, the First Declaration of the Defendants’ First Declaration is an act contrary to the public interest as a teacher who is a public official, and thus, it constitutes a collective act which has neglected duty of care as a member of the public official. Thus, it is reasonable to view that the Defendants’ First Declaration constitutes “collective act for activities other than public duties” prohibited by Article 66(1) of the State Public Officials Act.

(3) Next, we examine the second assembly and demonstration with respect to the second assembly and demonstration.

(A) We examine the following facts in light of the reasoning of the lower judgment and the evidence duly admitted by the lower court regarding the second assembly and demonstration.

The Ministry of Education, Science and Technology and the Superintendent of the Provincial Office of Education, upon the announcement of the First Declaration, accused the 88 senior executives in charge of violating the State Public Officials Act, and made a strong response by requesting the City/Do Office of Education to take disciplinary action against the teachers concerned.

이에 피고인들을 비롯하여 1차 시국선언을 주도한 위 간부들은 2009. 6. 28. 제361차 중앙집행위원회 및 지부 회의를 열어 ‘표현의 자유 사수 및 전교조 시국선언 징계 대응 투쟁계획(안)’을 채택하는 등 고발 및 징계에 관한 정부의 방침에 맞서 다양한 유형의 투쟁행위를 하기로 결의하였다. 그 주요 내용은 ㉠ 전교조 본부를 투쟁본부 체제로 전환하여 현 상황을 노조, 교육관련단체, 시민사회단체, 진보단체, 종교단체에 전파하고 공동대응 태세를 구축하는 등의 역할을 조직적으로 수행하고, ㉡ 2009. 6. 29. 청운효자동 주민센터(구 청운동사무소) 앞에서 기자회견을 한 후 청와대로 이동하여 항의서한을 전달하고, 연대단체 항의성명을 조직하며, ㉢ 2009. 7. 5. 서울역에서 3,000명 이상의 조합원이 참가하여 전국교사결의대회를 개최하고, ㉣ 지부별 긴급 임시지부집행위원회를 개최하여 지회별 투쟁 사업을 진행하며, 투쟁본부는 국가인권위원회 활동을 촉구하는 항의 농성을 하고, 전교조 위원장이 길거리 교실, 촛불집회 등과 결합해서 상징적인 거점에서 농성하며, ㉤ 2009. 6. 29.부터 같은 해 7. 15.까지 1차 시국선언 참여자를 포함하여 최대 3만 명 이상이 참여하는 민주주의 사수, 표현의 자유 보장, 시국선언 탄압 중지 촉구 교사 2차 시국선언(이하 ‘2차 시국선언’이라고 한다)을 조직하여 이를 발표하며, ㉥ 2009. 7. 19. 공무원과 교사들이 최대한 참가하여 연대하여 항의 집회(이후 ‘교사·공무원 시국선언 탄압 규탄대회'로 추진되었다. 이하 ‘규탄대회'라고 한다)를 개최하는 것이었다.

On June 30, 2009, the Second Declaration was sent to the teachers of the Daejeon Branch to participate in the Second Declaration, and the Defendants shared the meaning of and direction for the Second Declaration by holding the Daejeon Branch Executive Committee, etc. to deliberate on the enforcement matters pursuant to the above resolution. The Second Declaration was sent to the teachers of the Daejeon Branch by actively notifying the teachers of the Daejeon Branch to participate in the second Declaration, and sent the list of the sign participants until July 16, 2009, which was composed of the participants of the Daejeon Branch’s largest organization, and the contents of the Second Declaration were sent to the Daejeon Branch’s online site, and the Defendants made efforts to actively promote the Second Declaration and implement the Second Declaration’s disciplinary action including the chairman, by encouraging them to participate in the second Declaration, such as posting the posters posted to the Daejeon Branch.

Although the Second Declaration does not directly deal with political issues alleged in the First Declaration, it is against the government’s measures on the premise of legitimacy of the First Declaration. As above, the purpose of the Second Declaration’s second Declaration, including the Second Declaration, was to defend the First Declaration’s aim with the view to the legitimacy of the First Declaration’s political character or sacrificity. In light of the second Declaration’s view, the government’s measures in the Second Declaration is likely to go beyond the military dicture or abuse the public power that destroys the fundamental order of democracy, it is reasonable to deem that the Defendants and its branch officers have clearly political purpose and intent with respect to the second Declaration.

In addition, the Second Declaration was held with the second Declaration of the Assembly and Demonstration since the Second Declaration was held on the same day as the second Declaration and the second Declaration was held on the same day. Thus, the Second Declaration of the Assembly and Demonstration was planned and implemented in connection with a series of processes in which political correspondence or correspondence is obvious, as stated above, and participated in the National Assembly and Demonstration.

In addition, in light of the period of the assembly and demonstration and the number and announcement method of the teachers participating in the signature, the ripple effect and influence of the second assembly and demonstration on the society and the educational field can not be deemed to be small compared to the first assembly and demonstration or the ordinary assembly and demonstration.

② In full view of the above circumstances, it is reasonable to view that the Defendants’ leading act in collusion with other former executives was an act of clarifying political biased or sacrificing to the extent that it may directly undermine the political neutrality of the public official, like the act of actively leading the first and latter executives, and that such act constitutes a collective act for the purposes other than public duties, as prohibited under Article 66(1) of the State Public Officials Act, since it goes against the public interest and is contrary to the public interest as a public official’s teacher, thereby undermining the discipline of public official duties or undermining the essence of public duties.

(B) (1) Examining the reasoning of the lower judgment and the facts revealed by the evidence duly admitted by the lower court in light of the legal doctrine as seen earlier, as follows.

As seen earlier, the Assembly and Demonstration was promoted together with the Second Assembly and Demonstration Act as one of the various types of collective acts to defend the First Assembly and the government’s response measures against it. From July 19, 2009 to 17:00 on the same day after the second Declaration was announced, the Assembly and Demonstration was held in the presence of the representatives and some members of the party, as well as the chairman of the private labor union, in addition to the members of the party, and the National Assembly and some members of the party, including the democratic party, democratic labor party, and various social organizations, and was led by the organization that has withdrawn critical positions of the government policies at the time of the election, such as the political party, democratic labor party, and various social organizations.

In addition, the contents and the method of expression of the participants in the Extraordinary Games are far more than the level of the first assembly and demonstration, such as the participants’ speech that “public officials, teachers, and citizens were able to gather power and judge the present government.” In addition, as in the First Assembly and Demonstration Act, the participants used a son and child containing strong criticism of the government’s policies as in the First Assembly and Demonstration Act, or putting off a kicket and rescue together.

② Comprehensively taking account of these circumstances, it is reasonable to view that the Defendants’ act of promoting and participating in a competition in which the political assertions or actions were collectively made by participating in the organization and the party in conflict with the government, etc., in collusion with other former and current political assistant officers, such as the party in which they had been taking a critical position in the government policy, and mentioning the current trial by the government, is an act of directly expressing the opposition to other political parties taking the lead of major policies in conflict with the former and to the extent that it may cause a direct infringement of political neutrality.

Therefore, the Defendants’ activities related to the World Cup also go beyond the main part as a public official’s teacher and go against the public interest and disrupt the public official’s performance of duties, or undermine the essence of public duties. Therefore, it constitutes a collective act which neglected the duty of full-time care and constitutes “collective act for activities other than public duties” prohibited by Article 66(1) of the State Public Officials Act.

(4) Thus, the court below is just in finding the Defendants guilty of all the charges of collective action against the Defendants with respect to the First Declaration and the Second Declaration and the Second Declaration, and there is no error in the misapprehension of legal principles as to prohibition of collective action under the State Public Officials Act, contrary to what is alleged in the grounds of appeal. The ground of appeal on this part is without merit.

2. As to the ground of appeal on Defendant 1’s violation of the Assembly and Demonstration Act

A. The holding of an unreported outdoor assembly

(1) An assembly subject to security and regulation under the Assembly and Demonstration Act (hereinafter “Act”) refers to “the temporary gathering of a specific or unspecified number of people at a certain place under the purpose of externally expressing their opinions by forming a common opinion” (see Supreme Court Decision 2007Do1649, Jul. 9, 2009, etc.). Article 2 Subparag. 3 of the Act provides that the organizer of an assembly is “a person or organization taking part in an assembly or demonstration under his/her own responsibility under his/her own name.”

Article 30 of the Criminal Act provides that two or more persons jointly commit a crime. In the event that a crime is committed through functional control by a joint doctor, which is a subjective element, and an objective element, a joint principal offender is established (see Supreme Court Decision 2001Do4792, Nov. 9, 2001, etc.).

Therefore, the organizer of a demonstration that requires a prior report under Article 6(1) of the Assembly and Demonstration Act refers to a person who holds or takes the lead in holding or carrying out a demonstration by planning and organizing it, and a person who solicits the implementation through functional control by the intent of joint processing and joint will with respect to the hosting of an unreported outdoor assembly or demonstration cannot be exempted from the criminal liability as a co-principal for an unreported outdoor assembly or demonstration even if he/she did not directly participate in a specific act of implementation (see Supreme Court Decision 2009Do2821, Sept. 29, 201, etc.).

(2) Examining the reasoning of the judgment below in light of the above legal principles, the court below is just in finding that the assembly on June 29, 2009 (hereinafter “instant assembly”) constituted an outdoor assembly subject to the duty to report under the Assembly and Demonstration Act, and that Defendant 1 conspired with the participants in the 361 Central Executive Committee in front school and held the assembly by sharing the act of implementation, and found Defendant 1 guilty of violating the Assembly and Demonstration Act by holding the unreported outdoor assembly, and there is no error in the misapprehension of the meaning of the assembly or the legal principles as to the organizer of the assembly under the Assembly and Demonstration Act, as otherwise alleged in the ground of appeal. The ground of appeal pointing this out is without merit.

B. The non-compliance with the dispersion order

(1) Article 6(1), Article 20(1)2, Article 20(2), and Article 24 Subparag. 5 of the Assembly and Demonstration Act imposes a duty to report on a person who intends to hold an outdoor assembly or demonstration by requiring the person who intends to hold the outdoor assembly or demonstration to submit a report stating specific matters to the chief of the competent police station from 720 hours to 48 hours before commencing the outdoor assembly or demonstration, and the head of the competent police authority may order the person who fails to report as a result thereof to dissolve an outdoor assembly or demonstration through a specific procedure, and punish the person who fails to dissolve without delay even after receiving the order of dispersion.

The purpose of the Assembly and Demonstration Act’s prior reporting system is to protect legitimate outdoor assemblies or demonstrations by grasping the nature, size, etc. of such outdoor assemblies or demonstrations by filing a report in advance, and to prepare measures to maintain public safety and order together by preventing any danger to public safety and order resulting therefrom (see Supreme Court Decision 2008Do3974, Oct. 23, 2008, etc.).

However, as seen earlier, Article 21(1) of the Constitution guarantees the freedom of assembly including a demonstration as a fundamental right. The freedom of assembly is a fundamental right for an individual to freely express his or her opinion and assertion in group without intervention or coercion of state power, which belongs to an individual’s character creation element and an essential element of the representative democratic state. Accordingly, permission for assembly is not allowed in any case as stated in Article 21(2) of the Constitution declares that “the permission for assembly is not recognized.” The restriction on the freedom of assembly may be justified only in cases where it is essential for the protection of other important legal interests. In particular, dissolution of assembly should be permitted only where it is obvious that there is a direct danger to other person’s legal interests or public peace and order (see, e.g., Supreme Court en banc Decision 2009Do13846, Oct. 13, 2011; Constitutional Court en banc Decision 200Hun-Ba67, Oct. 30, 2003).

In full view of the constitutional value and function of the freedom of assembly, the constitutional spirit that declared the prohibition of permission for assembly, the purport of the reporting system as seen earlier, etc., the report is significant in providing specific information on assembly to an administrative agency for cooperation in the maintenance of public order, and it shall not be changed into an application for permission for assembly. Therefore, it cannot be readily concluded that the outdoor assembly or demonstration is not allowed to be held beyond the protection of the Constitution solely on the ground that the report was not filed.

Therefore, even if Article 20(1)2 of the Assembly and Demonstration Act does not provide for separate dispersion requirements while subject to a dispersion order, such outdoor assembly or demonstration may be ordered to dissolve pursuant to the above provision only when it clearly poses a direct danger to the legal interests of others or public peace and order, and only when it refuses to comply with the dispersion order meeting such requirements, it shall be deemed that such outdoor assembly or demonstration may be punished pursuant to Article 24 subparag. 5 of the Assembly and Demonstration Act. On the other hand, if it is interpreted that the outdoor assembly or demonstration can be dissolved solely on the ground that it is not reported, this would in fact infringe on the freedom of assembly, as it is nothing more than the prior report system operated as the permitted system. Even if interpreting Article 20(1)2 of the Assembly and Demonstration as above, the normative power of the prior report system can be sufficiently secured only to punish the organizer of an outdoor assembly or demonstration who failed to perform the duty to report under Article 22(2) of the Assembly and Demonstration Act.

(2) In light of the above legal principles, the part of the court below’s determination that the dissolution order may not be appropriate for the reason that the instant assembly was an outdoor assembly that was not reported.

However, according to the reasoning of the judgment below and the record, 20 full-time officers including Defendant 1, etc., were held without reporting at around 14:05, Jun. 29, 2009, in order to resist the accusation against the teachers participating in the assembly at the first meeting of the educational authority. According to Article 11 subparag. 2 of the Assembly and Demonstration Act, the outdoor assembly and demonstration are prohibited without exception within 100 meters from the boundary of the office of the office of the office of the president, and the party of the assembly at the assembly at the assembly at this case’s place of the assembly at this case’s place of the assembly at this time is not far away from the office of the president. The participants of the assembly at this case want to carry out the assembly at the place of the assembly at the time of the assembly at the time of the assembly, which is an absolute prohibition place, and the chief of the police station at the time of the assembly at the time of the assembly at the time of the assembly, and the participants of the assembly and demonstration at the end of the police station entrusted with the authority.

In light of the aforementioned developments and place of the assembly of this case, the actual progress of the assembly, and the circumstances where the participants in the assembly attempt to extend the place of assembly to the place where an outdoor assembly or demonstration is prohibited, etc., it may be deemed that the assembly of this case resulted clearly in a direct danger to public safety and order. Thus, Defendant 1’s act of failing to comply with the dispersion order constitutes a violation of Article 24 subparag. 5 of the Assembly and Demonstration Act.

(3) Therefore, although part of the reasoning of the judgment below is not appropriate, the conclusion of finding Defendant 1 guilty on the ground that the dispersion order in this case was lawful is just, and there is no error in the misapprehension of legal principles as to dispersion order in the Assembly and Demonstration Act, which affected the conclusion of the judgment, contrary to what is alleged in the ground of appeal. The allegation in the grounds of appeal

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the part of violation of the State Public Officials Act related to the First and Second Declarations. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Park Ill-chul, Justice Jeon Soo-ahn, Justice Lee In-bok, Justice Lee Sang-hoon, and Justice Park Poe-young as to the Defendants’ violation of the State Public Officials Act related to the Second Declarations of Assembly and Second Declarations, and a dissenting opinion by Justice Shin

4. Dissenting Opinion by Justice Park Poe-young, Justice Jeon Soo-ahn, Justice Lee In-bok, Justice Lee Sang-hoon, and Justice Park Poe-young as to the Defendants’ violation of the Assembly and Demonstration Act

The Majority Opinion argues that the Defendants were in violation of the State Public Officials Act, such as the Defendants’ involvement in the First and Second Declarations, but is not justifiable.

A. Article 66(1) of the State Public Officials Act provides that “A public official shall not engage in any collective action for any labor campaign or activities other than public service.” As pointed out in the Majority Opinion, this provision provides for one of the obligations arising from a special status of a public official, given that a collective action by a public official representing the interests of a group of public officials may interfere with the overall interest trend of the people.

In this context, "collective action for any work other than public duties" means all collective action conducted by public officials for any work other than public duties, rather than public duties, and the narrow interpretation of "collective action that affects the failure to perform duties for the purpose of public interest" by comprehensively taking into account the following: Article 21(1) of the Constitution guaranteeing the freedom of speech, press, assembly and association; Article 21(1) of the Constitution guaranteeing the freedom of speech; the constitutional principles; the purport of the State Public Officials Act; the duty of good faith and duty of care under the State Public Officials Act; and

B. Of the facts charged, the purport of the Assembly and Demonstration Act’s violation is that “the Defendants participated in the First and Second Assembly and Demonstration” in collusion with the former and the former and the latter’s teachers, etc. In addition, with respect to the First and Second Assembly and Demonstration, the facts acknowledged by the lower court or acknowledged by the record are as follows. (1) The overall contents of the First Assembly and Demonstration were stated as abuse of public power on a specific case and urged the government to criticize the major policies promoted by the government. The expression was “the government to effectively reform government’s government’s trust and restore it.” (2) The overall contents of the Second Assembly and Demonstration were unconstitutional abuse of public power, and demand the withdrawal and legitimacy of the Assembly and Demonstration’s opinion was demanded. In addition, the second Assembly and Demonstration’s signature was not required by the second Assembly and Demonstration’s second Assembly and Demonstration’s signature and communication with the public and the teachers on the government’s website.

C. The Defendants’ involvement in the First and Second Declarations cannot be deemed as violating Article 66(1) of the State Public Officials Act as seen earlier. The reasons are as follows.

(1) An act contrary to Article 66(1) of the State Public Officials Act should first be “an act for a purpose contrary to the public interest.” The meaning of “an act contrary to the public interest” in this context is comprehensive, abstract, and large, and it is difficult to objectively determine its content through ordinary interpretation of the law enforcement agency, so in order to achieve harmony with the freedom of expression guaranteed by the Constitution, not in violation of the principle of clarity of the principle of no punishment without the law. In this respect, the purport of Article 66(1) of the State Public Officials Act, supra, can be the basis for such restrictive interpretation. Ultimately, the existence of “an act contrary to the public interest” should be recognized only when the act seriously undermines the public’s trust in performing official duties or infringes on the nature of the democratic and professional public official system, such as interfering with the overall interest of the public official by representing the interests of the entire citizens in the event of a conflict between the entire citizens and the public official group.

(2) First, the contents of the Assembly and Demonstration was seen earlier, and the Defendants’ motive and purpose were revealed in the facts charged, and the First Declaration was decided to criticize the present government policy and demand the reform of the government, and thus the Defendants participated in the Assembly and Demonstration. The Second Declaration was intended to demand disciplinary action against the teachers participating in the First Declaration and demand the freedom of expression. ③ The Second Declaration was announced under the circumstances where the Assembly and Demonstration was announced on the same level of society as the circumstances. ④ The First Declaration was announced under the circumstances where the teachers was put on the list of the teachers’ signatures, and was announced and posted together with the Assembly and Demonstration.

In full view of the above circumstances, the First and Second Declarations cannot be deemed as representing the interests of the group of “the teachers affiliated with the same group or teachers who participated in the assembly or demonstration,” and it does not interfere with the interests of the entire citizens by representing the government’s policy or government administration on a specific case, or by demanding the improvement thereof, or by guaranteeing the freedom of expression related thereto. Such demand is merely an exercise of the freedom of expression as a fundamental right guaranteed by the Constitution, and such freedom of expression is the basic premise of the free democratic basic order oriented by the Constitution. Therefore, it does not interfere with the interests of the entire citizens by representing the interests of the public. In light of the social situation at the time of the assembly or the level of consciousness of the citizens, it cannot be deemed that the act seriously undermines the public confidence in the performance of official duties or infringes on the essence of the system of democratic and public officials. In other words, the act is not against the purpose of the First and Second Declarations.

(3) The Majority Opinion appears to be “an act for the purpose against the public interest” on the grounds that the First and Second Declaration expressed a political opinion collectively, and thus violated a public official’s political neutrality duty. However, the First and Second Declaration merely objects to a specific political group or political strike, not against the government’s specific policy or individual public authority, but demands improvement. Thus, barring any special circumstance, such as where a certain political group or political power appears to have the same effect, it should not be readily concluded that the Defendants violated a public official’s political neutrality duty (or even if it was conducted for supporting a specific political group). In addition, the First Declaration was given legal advice to ensure that the First Declaration was made within the lawful scope, and thus, the Declaration was amended pursuant to Article 66(1) and Article 65 of the State Public Officials Act does not constitute “an act of political action or prosecution,” and thus, it does not constitute “an act of political neutrality or prosecution,” and thus, it does not constitute “an act of political offense.”

In light of the fact that the State Public Officials Act separately prohibits and punish the “political activity” or “political activity” of a public official as a separate provision, and that Article 3 of the Act on the Establishment and Operation of Teachers’ Unions separately prohibits “political activity” of a teachers’ trade union (the same Act does not provide a penal provision for the act violating the same Act) and that various political activities are legally permitted for university professors who are the same public educational official, even if the first and second instances can be deemed as acts contrary to the public official’s political neutrality duty, it does not immediately constitute “act for the purpose contrary to the public interest” as prohibited under Article 66(1) of the State Public Officials Act. If so, it would result in an unjust expansion of “political activity” or “political activity” listed as prohibited under Article 65(1) of the State Public Officials Act.

(4) As such, the concept of “an act for a purpose contrary to the public interest” includes an inherent limitation in accordance with the purport of Article 66(1) of the State Public Officials Act, and where such an act does not meet another requirement, such as “collective act that may affect the duty of care,” it cannot be deemed an act prohibiting Article 66(1) of the State Public Officials Act.

However, the Declaration No. 1 and the Second Declaration was issued against the general public regardless of the curriculum, since it was merely a form of a list of the teachers who sent the door to the front school aid headquarters to the branch or sub-branch, and issued and posted it, and it was conducted against the general public regardless of the curriculum. However, there was no evidence that there was a conflict between the two in the process, and thus, it cannot be deemed that the First Declaration and the Second Declaration violated the student’s right to teach students or interfere with the educational administration, such as the teacher’s performance of duties (in addition to substantial infringement or interference, there is no concern about abstract infringement or interference).

In addition, even if the Defendants did not comply with the request of the Minister of Education and Human Resources Development prior to the announcement of the First Declaration, it cannot be deemed that the Defendants neglected to perform their duty of care on the sole ground that they did not comply with the request, unless there were any unlawful elements as seen earlier.

In conclusion, the Declarations Nos. 1 and 2 cannot be deemed as an act affecting the duty of a public official, and there is an obvious difference between the acts of participating in the Second Declarations after the Second Declarations.

D. Although it was pointed out earlier, Defendants’ involvement in the First and Second Declarations is an act within the scope protected by the freedom of expression, which is an essential fundamental right to the existence and development of a democratic state.

In order to reflect the true will of the State formed through the representative body in representative democracy, it is very important for the people to form a public forum in which they can freely express their political opinions so that they can discuss national policies. The head of such public forum should freely participate in and communicate with each other without being bound to the situation, interest, status, or social status of the people. It is difficult for the representative democracy to function properly because it is inevitable for the people to depend only on the institutionalized press because this space is not activated.

The First and Second Declarations is an expression of critical opinion by teachers in a situation where there was a critical public opinion on the government’s major policies and state administration at the time, and the objective of the Declaration is to demand the government to reflect the public opinion in the policy by respecting the public opinion. As such, a democratic state is an act that must be accepted as the place of public opinion. Nevertheless, the expression is merely an act that the expression is a teacher group who is a public official (in this case, neither the Defendants are public officials) and it is inevitable to have the character of “political” to a certain extent as it concerns a public discussion, and it is unreasonable to exclude this from the scope of the constitutional protection of the freedom of expression on account of such an inevitable character.

E. In short, the Defendants’ acts involved in the First and Second Declarations constitute collective acts prohibited under Article 66(1) of the State Public Officials Act, not “an act for purposes contrary to the public interest” but “collective acts that affect the duty of care, such as neglecting duty of care.” Thus, it does not constitute “collective acts for purposes other than public duties” prohibited under the same provision.

The lower court determined that the Defendants’ First and Second Declarations were in violation of Article 66(1) of the State Public Officials Act, and thus, it erred by misapprehending the legal doctrine on the meaning of “collective acts for purposes other than public duties” under the State Public Officials Act. Therefore, the lower court’s judgment convicting the Defendants of all the charges in this case should be reversed in its entirety.

As above, I express my dissenting opinion.

5. Dissenting Opinion by Justice Shin Young-chul on the part of violation of the State Public Officials Act related to the Second Declaration by the Defendants

Although we agree with the majority opinion as to the violation of the State Public Officials Act with respect to the First Declaration, we dissent with the majority opinion as to the violation of the State Public Officials Act with respect to the Second Declaration.

A. As pointed out in the Majority Opinion, the First Declaration’s motive is very political, and the time of the Declaration is directly connected to the political situation, and the contents of the Declaration also undermine the political neutrality that public officials should observe. In particular, in light of the Political Parties Act and the purport of the Public Official Election Act imposing strict political neutrality obligations differently from the university teachers, the Defendants’ act was limited to the expression of opinion with a collective signature as to the question, but the Defendants’ act was led to the expression of opinion with a view to the public official’s activities as to the said declaration. However, it is recognized that the Defendants’ act was led to a collective act with a view to the acts other than public duties prohibited by the State Public Officials Act.

B. However, it is difficult to view that the Second Declaration exceeded the bounds of expression of opinion that public educational officials can serve as public educational officials in various respects, such as the progress that led to the Second Declaration and the content of the Declaration, or committed a collective act for purposes other than public duties in violation of political neutrality obligations.

The Assembly and Demonstration Act was enacted with a series of acts from the time of the Assembly and Demonstration Act, not with a view to the first assembly and demonstration, but with a view to the government’s direction that led by the First Assembly and Demonstration Act and took severe disciplinary action. In light of these circumstances, although the Second Assembly and Demonstration Act was established as a follow-up procedure, it is premised on the legitimacy of the First Assembly and Demonstration Act, its main motive or purpose is to demand withdrawal of criminal charge or disciplinary action against teachers, and it is difficult to view that there was a political intent or purpose, such as the First Assembly and Demonstration Act.

In light of the contents of the Assembly and Demonstration Act, it is true to criticize the government’s strong response and educational policy general and urge teachers to guarantee their freedom of expression. Among the contents, there is a criticism that government’s response was debrised in the past Military Reading Act. However, it is merely an investigative exaggeration. It is insufficient to readily conclude that the Second Assembly and Demonstration were merely an expression of a unilateral and biased political opinion like the First Assembly and Demonstration.

The Majority Opinion, like the Defendants, deemed that the First Declaration was conducted with political intent or purpose revealed in the First Declaration related to the First Declaration. However, as seen earlier, the First Declaration and the Second Declaration differ from the motive or background at which it was conducted, and the purport of the Second Declaration are different. Thus, legal evaluation as to the two is different.

C. In addition, the Majority Opinion focuses on the fact that the Second Declaration was resolved by the Presidential Committee on the Blue Blue of the Blue of the Blue of the Blue of the Blue of the Blue of the Blue of the Blue of the Blue of the Blue of the Blue of the Blue of the Blue of the Blue of the Blue of the Blue of the Assembly, and it is planned and implemented in connection with the process of participating in the

However, both the Second Declarations and Pacific Declarations were planned and promoted to cope with the government’s strong measures against the First Declarations. However, not only the leading entity or the progress of the assembly but also the alleged contents are qualitatively different, and it does not necessarily mean that they were resolved on the same opportunity. In other words, the legal evaluation of the public official’s act of expressing the public official’s opinion independently and indirectly in the form of the assembly to express the demand for the withdrawal of disciplinary action is different from the act of expressing the government’s opinion directly and indirectly in connection with a certain political force.

Meanwhile, in light of the contents of the facts charged, the Prosecutor’s Office appears to have prosecuted the Defendants’ act related to the second assembly and demonstration as a single crime. However, the second assembly and demonstration did not merely constitute the premise or preparation for the act of participating in the assembly and demonstration, but itself constitutes an important part of the crime. Therefore, even if it is found guilty of the Defendants’ act of participating in the assembly and demonstration, which constitutes a crime, other acts constituting a crime, the part of the assembly and demonstration should be reversed if it cannot be found guilty of the facts charged as to the second assembly and demonstration

D. Ultimately, it is reasonable to view that the act of the Defendants with respect to the Second Declaration constitutes a “collective act for purposes other than official duties” prohibited by the State Public Officials Act, as a collective act that affects the public interest such as neglecting duty of care for the purpose of violating the public interest.

Therefore, among the facts charged against the Defendants in violation of the State Public Officials Act, the part concerning the First Declaration and the Second Declaration against the Defendants is guilty. However, the part related to the Second Declaration is not guilty. However, the judgment of the court below which found the Defendants guilty is erroneous by misapprehending the legal principles as to collective action under Article 66(1) of the State Public Officials Act, which affected the conclusion of the judgment. Therefore, the judgment of the court below that recognized the Defendants’ violation of the State Public Officials Act with regard to the First Declaration and the Second Declaration as concurrent crimes or a single punishment is reversed in its entirety.

For the foregoing reasons, I oppose the Majority Opinion.

6. Dissenting Opinion by Justice Jeon Soo-ahn as to the violation of the Assembly and Demonstration Act by Defendant 1’s refusal of dispersion order

In interpreting Article 20(1)2 of the Assembly and Demonstration Act, the Majority Opinion’s interpretation that a dispersion order may be issued only in cases where an outdoor assembly or demonstration poses a clear danger to another person’s legal interests or other public peace and order, which is obviously caused by such outdoor assembly or demonstration, is justifiable in accordance with the previous Supreme Court precedents and the Constitutional Court’s opinion. However, the Majority Opinion’s interpretation that, on the premise of such legal doctrine, deeming that the assembly of this case poses a direct and apparent danger to another person’s legal interests or other public peace and order is difficult for the following reasons.

A. The freedom of assembly is an essential element of maintaining the constitutional order along with the freedom of expression in that an individual’s freedom of expression and freedom of collective expression with another person’s freedom of expression should not be isolated from the other person by state power, and at the same time, that can affect the formation of public opinion by collectively expressing one’s opinions and arguments. Furthermore, the freedom of assembly functions to reflect the minority’s rights, interests and opinions by providing the opportunity and means of collective expression to the minority in a society in which the principle of majority is controlled.

However, since such freedom of assembly is premised on the use of outdoor or road, it is necessary to harmonize with other legal interests and to make a report in advance. However, such report is accepted only as the imposition of cooperative obligations to coordinate competition between multiple assemblies and to fully realize the freedom of assembly, by having administrative agencies, such as police agencies, etc. prepare measures necessary for maintaining public safety and order. As such, an assembly and demonstration is a provision system of the current law (see, e.g., Constitutional Court en banc Decision 2007Hun-Ba22, May 28, 2009). Therefore, even in a non-reported assembly, the freedom of assembly should be guaranteed unless it is permitted in light of the purport of such report, and it cannot be restricted beyond such scope solely on the ground that there was no prior report.

In addition, the obligation to report the assembly is imposed on the organizer of the assembly, and the sanction for non-performance is also the share of the organizer of the assembly, while the dissolution of the assembly is seriously restricted the freedom of assembly by requiring all the participants in the assembly to comply with the dispersion order, it is necessary to consider in its specific application.The dissolution of the assembly is the prohibition of the assembly immediately, and the prohibition of the assembly is a final and complete restriction on the freedom of assembly.

Therefore, a dispersion order against an unreported assembly shall be permitted only when the assembly poses a direct, clear, and present danger to the legal interests of others or other public peace and order, as stated in the majority opinion. However, it is important to strictly apply the standards in individual cases at issue, and it shall not be applied as if it satisfies the above criteria solely with the probability that the danger may arise.

B. According to the reasoning of the judgment below and the judgment of the court of first instance, the assembly of this case was held to resist the government's accusation measures against the teachers participating in the assembly of this case. The number of participants is more than 20, and the participants in the assembly did not exercise force or physical force other than attempting to proceed to the Cheongdae-dae under the pretext of moving out and moving out relief using micro, spackers, etc., and they did not escape from the assembly or interfere with vehicle traffic. Since the head of the police station guard division requested dissolution, the participants in the assembly of this case did not actively exercise the type of force against the police force, but did not actively exercise the force against the police force. The participants in the assembly of this case did not exercise the force of traffic caused by the 50 minutes of the assembly of this case, and the participants attempted to proceed to the Cheongdae-dae and the police with the speed of 15 minutes of the assembly of this case and protested against it.

According to these facts, although the assembly of this case was not reported, it cannot be deemed that it was an assembly to the extent that it could not maintain order in its size or content, and in fact, it was held in a peaceful atmosphere until the police is prevented from proceeding to the audience of the assembly, and it was evident that the response of the participants in the assembly to the police's restraint was made passive resistance and did not cause any confusion in maintaining order, such as traffic, etc. Therefore, it cannot be deemed that the assembly of this case directly or clearly caused a danger to other's legal interests or public peace and order, or that there was such danger.

C. The majority opinion argues that the assembly of this case was held at a place where the assembly of this case was prohibited from holding an outdoor assembly or demonstration, and that the participants attempted to proceed to the Cheongdaedae, it seems that the assembly of this case satisfied the requirements of danger to the legal interests of others and other public peace and order.

However, the right to choose and decide the place of assembly is the body of the act guaranteed as the freedom of assembly and demonstration along with the right to decide on the time, method, and purpose of the assembly. Among them, the right to choose the place of assembly is closely related to the opinion intended to express through the assembly or the other party to the opinion expressed, and thus, it is difficult to say that the freedom of assembly is free without the freedom of assembly.

However, Article 11 of the Assembly and Demonstration Act prohibits an assembly and demonstration at a specific place, such as “within 100 meters from the boundary of the presidential official seal,” but this is generally likely to cause conflicts with other important legal interests such as smooth performance of duties and ensuring physical safety in such a place, or lead to infringement of legal interests (see, e.g., Constitutional Court en banc Order 2000Hun-Ba67, Oct. 30, 2003). Thus, the prohibition of uniform and complete assembly cannot be recognized as justifiable as a regulation based on the above provision.

As cited in the Majority Opinion, solely on the grounds that the Cheongff-Automatic community service center, which is the place of the instant assembly, is not located far away from the audience, or intends to proceed to close close to the place where the assembly is prohibited, it cannot be deemed that there was a direct and apparent danger to important legal interests such as performance of duties or security at a specific place, such as security, and even if there was no such danger in specific circumstances, there is a concern about virtual or external nature, which is the general characteristic of the assembly, and thus, it cannot be seen as a mere exaggeration to completely prohibit the assembly or demonstration by requiring it to be dissolved in advance, rather than “a place within 100 meters from the audience,” which is a place prohibited under the Assembly and Demonstration Act, and even an assembly or demonstration at the close place.

Ultimately, the Majority Opinion is unreasonable in that it can be ordered to dissolve even with the probability of risk occurrence different from that of the internal interpretation, and its standard is mitigated. The legal doctrine declared by the Supreme Court is meaningful only when it is actually applied as the settlement standard of dispute in a specific case. If an order to dissolve an assembly of this case is deemed lawful as stated in the Majority Opinion, it does not differ from the application of the legal doctrine that an unreported assembly may be ordered to dissolve only with the probability of risk occurrence. Accordingly, the legal doctrine stated by the Majority Opinion is unreasonable.

Furthermore, the lower court did not regard whether a direct danger to another person’s legal interests or other public peace and order has been clearly caused, and therefore, it did not properly examine whether the instant assembly constitutes such a case as a natural matter of course. In such cases, the Supreme Court’s remanding the case to the lower court with pointed out that the interpretation of the legal principles of the lower court was erroneous, thereby allowing the lower court to examine the factual basis of the lower court as a fact-finding court, and the reasons why the Majority Opinion intended to maintain the conclusion of the dismissal of final appeal by examining the factual basis related thereto cannot be understood.

D. In short, the order of dispersion issued to the participants of the instant assembly including Defendant 1 merely because the head of the competent police authority did not meet the requirements, and thus cannot be deemed lawful. Thus, even if Defendant 1 did not comply therewith, Defendant 1 cannot be punished pursuant to Article 24 subparag. 5 of the Assembly and Demonstration Act. On the contrary, the lower court found Defendant 1 guilty of this part of the facts charged on the ground that the order of dispersion was lawful solely on the ground that the instant assembly was an unreported assembly, and thus, it erred by misapprehending the legal principles on the requirements for non-reported assembly and dispersion order under the Assembly and Demonstration Act, thereby affecting its interpretation and application. The

For the foregoing reasons, I express my concurrence with the Majority Opinion.

Justices Yang Sung-tae (Presiding Justice)