207No295 - A. Injury resulting from special obstruction of performance of official duties

(b) Violation of the Punishment of Violences, etc. Act (a group, a deadly weapon, etc. or an injury);

(c) Damage to public goods;

(d) Violation of the Assembly and Demonstration Act;

(e) General traffic obstruction;

F. Special obstruction of performance

(g) Damage to special goods for public use;

(h) Destruction and damage of special property;

[2] The Head of Jeon-ju Regional Headquarters of Jeon-ju, Jeon-ju

Defendant and Prosecutor

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Attorney 000

Law Firm 00

Attorney in charge 00

Gwangju District Court Decision 2007Gohap144, 204 (Consolidated) Decided September 7, 2007

November 1, 2007

All appeals filed by the defendant and prosecutor are dismissed.

1. Grounds for appeal;

(a) Reasons for appeal by the defendant;

(1) misunderstanding of facts and misapprehension of legal principles

A) As to Paragraph 1 of the original adjudication

Although the Defendant participated in the food event at the time of the instant case, the Defendant did not directly display the pipe, etc. to the police officers at the pressure of demonstration. However, the lower court erred by misapprehending the legal doctrine, or by misapprehending the legal doctrine, thereby recognizing the Defendant as a co-principal of the instant crime.

B) As to paragraphs 4-A and 5-1(a) at the time of the original adjudication

Although it is difficult to see that each assembly reported by the Defendant was remarkably deviating from the scope of each assembly reported by the Defendant and it cannot be deemed that the Defendant was infinite, the lower court erred by misapprehending the facts, thereby having committed the crime.

C) As to Article 5-2(b) at the time of the original adjudication

Although the Defendant could not be considered as the organizer as prescribed by the Assembly and Demonstration Act, the lower court found the Defendant guilty of holding the outdoor assembly in collusion with the Plaintiff, who was notified of the prohibition of an outdoor assembly.

(2) Unreasonable sentencing

The punishment sentenced by the court below (one year and six months of imprisonment) is too unreasonable.

(b) Grounds for appeal by prosecutors;

The sentence sentenced by the court below against the defendant is too uneasible.

2. Determination

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

(1) As to paragraph (1) at the time of the original adjudication

In a joint principal offense, “public offering” does not require any legal punishment, but is a combination of intent to realize a crime. Although there was no process of the whole conspiracy, if the combination of intent is achieved successively or implicitly between several persons, a public offering relationship shall be established. Even if there was no participation in the implementation of the conspiracy, even if one or more persons did not participate in the act of the conspiracy, they shall be subject to criminal liability as a joint principal offender against the other persons’ act (see, e.g., Supreme Court Decision 2003Do4320, May 11, 2006). In addition, a public offering for a joint principal offense is one and more persons to commit a specific criminal act with another’s intention, and one or more persons should jointly commit the crime with another’s intention to commit the crime, and one or more persons should jointly commit the crime with another’s intention to commit the crime, such as a specific date and time, contents, etc. of the conspiracy’s opinion, and if there is no need to jointly commit the crime of obstruction of performance of one’s duties (see, 20006.

With respect to this case, the following circumstances, which were duly admitted by the court below by integrating the evidence and duly admitted by the court below, were directed to the organization under the guidelines for the strike that "the head of the Democratic Labor-gun Seoul District Headquarters, on October 0, 2005, planned the Gwangju City Viewing Assembly on October 0, 2005 and decided to do so at a net,000." In accordance with the above guidelines, the defendant, as the chairperson of the Gwangju Regional Trade Union as of October 0, 2005, at the time, did not err in the misapprehension of the legal principles as to the defendant's participation in the assembly and demonstration by attending the "resolution for non-regular closure of 0000,000, which was at the time of the Gwangju Regional Trade Union," and the defendant's participation in the assembly and demonstration as of October 0, 2000, and there was no specific reason to recognize the defendant's participation in the assembly and demonstration as the defendant's participation in the assembly and demonstration."

(2) As to paragraphs 4-A and 5-1 (a) at the time of the original adjudication

Comprehensively taking account of the evidence duly adopted and examined by the court below, even though the defendant reported a meeting to the effect that he will take place using a vehicle line in his own name, it is recognized that the defendant considerably deviates from the scope of the meeting report by means of occupying the entire road beyond the reported assembly's resources or driving on the road, such as moving on the road at the glass of the labor office, and driving on the road, and that the scope of the place and method of the report, such as the place and method of the assembly report, and moving on the road, the court below is just in finding the defendant guilty as to this part, and there is no ground for appeal as pointed out by the grounds for appeal. The defendant's argument on this point is without merit

(3) As to Article 5-2(b) at the time of the original adjudication

According to the Assembly and Demonstration Act (amended by Act No. 8424 of May 11, 2007), a person who intends to hold an outdoor assembly shall file a report stating the purpose, date, time, place, organizer (in the case of an organization, including its representative), etc. from 720 hours to 48 hours before the outdoor assembly is held (Article 6(1)), and shall punish a person who holds an assembly in violation of the above provision (Article 19(2)), and the " organizer" refers to a person or organization holding an assembly or demonstration under his/her own responsibility under Article 2 subparag. 3). If an organization hosts an assembly or demonstration, it shall be deemed that the representative is subject to the penal provisions of this Act, and shall be deemed to be the organizer of the assembly or demonstration (Article 22). Meanwhile, Article 30 of the Criminal Act provides that a person who jointly holds an assembly or demonstration is deemed to have committed an assembly or demonstration with another person's own intent and to jointly carry out an assembly or demonstration with another person's own intent without any subjective requirement.

이 사건에 관하여 보건대, 원심이 적법하게 조사하여 채택한 증거들을 종합하여 인정된 다음의 사정 즉 , 민주노총 및 민중연대 등 270개 단체로 구성된 한미FTA 저지 범국민운동본부가 2006. 11. 00.부터 같은 해 12 . 0.까지 15일간을 투쟁기간으로 정하 고 전국 시군구에서 11. 22. 1차, 11. 29. 2차, 12 . 6. 3차에 걸쳐 "노동기본권 쟁취, 사 회양극화 해소, 한미FTA 저지 범국민총궐기대회" 를 개최하기로 결정한 점, 이에 따라 민주노총 광주전남지역본부 등의 연대단체인 광주전남 00연대가 주도하는 한미FTA 저 지 광주전남운동본부는 00 명의로 "한미FTA 협상중단 3차 궐기대회 촛불집회"를 신고 하였으나 옥외집회금지를 통고받은 점, 그럼에도 이 사건 집회를 강행하여 허연은 "한 미FTA는 노동자 농민만이 아니라 전 민중이 똘똘 뭉쳐 막아내야 한다" 는 취지로 연설 하고, 피고인은 이 사건 집회에서 민주노총 광주전남지역본부장의 자격으로 "11. 30. 국회를 통과한 비정규직 법안은 비정규직을 양성하는 법안이다" 는 취지로 연설한 후 도로를 점거한 채 행진하여 집회를 주도한 점 등을 종합하면, 피고인은 위 00과 공모 공동하여 이 사건 집회를 주최한 것으로 볼 수 있다고 할 것이므로, 이 부분 공소사실 에 대해 유죄를 인정한 원심의 판단은 정당하고, 피고인의 주장은 이유 없다.

B. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

It appears that it is necessary to exchange ideas with other people and collectively indicate them, and that the freedom of assembly and demonstration for the purpose of securing them belongs to the fundamental human desire and is also an essential element for the democratic community to function. In particular, the freedom of assembly and demonstration functions as an important fundamental right for the protection of the minority in that it provides for an effective means of expressing opinions jointly with the minority groups to protect their rights and interests. It is more reasonable that the decision-making by majority can only be justified if it is guaranteed that there is a possibility that the minority might affect the process of community formation, and that there is no possibility that the assembly and demonstration should be carried out by our law, and that there is no possibility that the assembly and demonstration will be carried out in a more democratic manner than that of our society. However, it is unreasonable for the court below to view that there is no possibility that the assembly and demonstration will be carried out by the public to be carried out, and that there is no consensus that the assembly and demonstration would be an unlawful expression of opinion, which is a fundamental point of view.

3. Conclusion

Therefore, in accordance with Article 364 (4) of the Criminal Procedure Act, all appeals filed by the defendant and the prosecutor are dismissed and decided as per the order (However, the "Act on Assembly and Demonstration" in the application of the law of the court below is clearly a clerical error in the old Assembly and Demonstration Act (amended by Act No. 8424 of May 11, 2007).

Article 000 (Presiding Judge)

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