2015No3919 General traffic obstruction

A

Defendant and Prosecutor

For the purpose of indictment (prosecution) and prosecution (public trial)

Law Firm B

Attorney G in charge

Seoul Central District Court Decision 2014Da6840-1 (Separation) Decided September 25, 2015

December 12, 2015

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) Legal principles

The instant assembly constitutes a “dynamic political party activity” as guaranteed by Article 37(2) of the Political Parties Act, which is held by the five representatives and party members. To deem that it does not fall under ordinary party activities, and punish a person by applying general traffic obstruction is excessively narrow without any grounds, and thus, it is contrary to Article 8(3) of the Constitution that declares the protection of a political party, and Article 37(2) of the Political Parties Act that provides the guarantee of a political party’s ordinary activities.

2) misunderstanding of facts

The assembly of this case was originally planned to be opened at the luminous square, and the police was installed at the front of the luminous square in order to prevent the passage of the audience, and the participants in the assembly did not enter the square in the front of the luminous square in order to obtain the square from the front of the ethical ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic

(b) Prosecutors;

1) misunderstanding of facts or misapprehension of legal principles as to the acquittal portion of the lower court

A co-principal is liable for a co-principal in a case where the remainder of the crime, which was recruited by another person, was committed without the participation in the execution, is committed. The Defendant, who was the lead of the assembly, led the illegal progress and traffic obstruction with the participants in the assembly, was in the state of the commencement of the execution, and even if he simply left the scene, it cannot be deemed as a deviation from the public contest relationship. Thus, a co-principal is established even after leaving the scene.

2) Unreasonable sentencing

In full view of the facts that the defendant led to the assembly of this case, the sentence of the court below (the fine of KRW 500,000) is too unhued and unreasonable.

2. Determination

A. As to the appeal by the defendant

1) As to the assertion that certain assemblies were ordinary political party activities, it should be determined by comprehensively taking into account the motive and background of the assembly or demonstration in question, contents and purpose of the assembly or demonstration, the overall size of its members, attitudes, etc. As such, the facts charged of this case is premised on that the assembly in question is an outdoor assembly that is not reported, it shall be examined as to whether the assembly in question is an ordinary political party activity, i.e., party speech meeting that is not necessary, as alleged by the Defendant. The court below duly adopted and observed the following circumstances, namely, ① the assembly in this case was jointly organized by the National Campaign Center for Barring the Korea-U.S. Free Trade Agreement (hereinafter referred to as the “pan-state assembly”), and ② the assembly in this case was held in the form of 2,200 members of the Korea-U.S. government Assembly from around 1, 200 members of the Korea-U.S. government Assembly, Korea-U.P. 30 members of the Korea Women Association on the date of the assembly in this case.

2) As to the assertion that there was no intention or no contest for general traffic obstruction

The purpose of general traffic obstruction under Article 185 of the Criminal Act is to punish all acts which make it impossible or considerably difficult to pass by causing damage to land, etc. or interference with traffic by other means, as an offense the legal interest of which is the protection of the public traffic safety. The general traffic obstruction is so-called abstract dangerous crime that traffic is impossible or considerably difficult, and the traffic is immediately available if the situation is not possible or considerably difficult, and the result of traffic obstruction is not practically occurred (see, e.g., Supreme Court Decisions 95Do1475, Sept. 15, 195; 2004Do7545, Oct. 28, 2005); and the conspiracy in which two or more persons jointly-managed accomplices in a crime does not require any legal fixed sentence, but only if two or more persons intend to jointly process a crime and realize such a crime.

Even if there was no master process of the entire conspiracy, if a combination of doctors takes place in order or implicitly between several persons, the conspiracy relationship is established. A person who does not directly participate in the execution is held liable as a co-principal for the act of another conspiracy even if he/she did not directly participate in the execution, and such conspiracy may be acknowledged in accordance with the circumstantial facts and empirical rules even if there was no direct evidence (see, e.g., Supreme Court Decision 2004Do5494, Dec. 24, 2004).

In light of the above legal principles, recognition by the evidence duly adopted and examined by the court below

The following circumstances are as follows: ① at around 21:00 on the day of the instant assembly, the stage vehicles belonging to the AE Party stopped in the middle of the three-dimensional street for a meeting to be opened in front of the front line of the front line of the Ethical square; ② the participants in the assembly with approximately 2,200 persons, including the Defendant, started the second assembly with three-dimensionals of the above stage vehicles from around 21:30 on the day of the instant assembly to the third class, and the above assembly continued until the declaration of completion of the assembly at around 21:58 on the day of the instant assembly; the traffic in the north line of the front line of the assembly at the time of the assembly at the time of the assembly at the time of the assembly at the time of the instant assembly at the time of the assembly at the front line of the front line of the vehicle at the time of the assembly at the time of the assembly at the time of the assembly at the time of the front line of the police hall at the time of the assembly at the time of the instant assembly at the time of the assembly at the front line.

B. As to the prosecutor’s appeal

1) As to the grounds for appeal as to the acquittal portion in a criminal trial, the conviction in a criminal trial shall be based on evidence with probative value sufficient to mislead the judge that the facts charged are true beyond a reasonable doubt. If there is no such evidence, even if there is a suspicion of guilt, it shall be determined in the interests of the defendant (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2005Do8675, Mar. 9, 2006). Examining the evidence duly adopted and examined by the court below in light of the aforementioned legal principles, the evidence submitted by the prosecutor alone is insufficient to prove that the defendant interfered with this part of the facts charged by occupying the lane from around November 26, 201 through around 21:58 to 23:37, and therefore, it is difficult to find that there is no reasonable evidence to prove that the defendant interfered with this part of the traffic, and the judgment of the court below is justified and acceptable.

2) As to the assertion of unreasonable sentencing

In light of the fact that participants, including the Defendant, occupy the road and the progress of the assembly of this case are seen to have experienced considerable inconvenience to the general public, the Defendant’s responsibility for the crime is not against the law.

However, in full view of the following factors: (a) the Defendant’s activities as the representative of H political party and AF party did not have the same history as the instant crime; (b) the Defendant thought that the report is unnecessary and appears to have attended the meeting of this case; (c) there are extenuating circumstances in the motive and circumstance of the instant assembly; (d) the degree of the Defendant’s participation in the act of occupying the road following the instant assembly; and (e) the Defendant’s age, character and conduct, environment, the background and consequence of the instant crime; and (e) all sentencing conditions in the instant pleadings, such as the circumstances after the commission of the crime, etc., the lower court’s sentence is too un

3. Conclusion

Therefore, since all appeals filed by the Defendant and the prosecutor are without merit, they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act (from around 21:30 of the original judgment, 'from around 21:59', it is apparent that it is a clerical error in the record, and therefore, it shall be corrected ex officio in accordance with Article 25(1) of the Regulation on Criminal Procedure.

The presiding judge, the senior judge;

Judges Kim Jong-soo

Judges Lee Jae-ho