[1] Criteria for determining whether an outdoor assembly or demonstration is subject to dispersion order because it is not identical to that reported beyond the scope of the report or constitutes “an act clearly deviating from the reported scope”

[2] The elements to establish a legitimate report under the proviso of Article 6(1) of the Assembly and Demonstration Act where an outdoor assembly or demonstration site belongs to the jurisdiction of two or more local police agencies

[3] The case holding that the court below erred in the misapprehension of legal principles in holding that the above act constitutes obstruction of the performance of official duties, in case where the defendant was prosecuted for obstruction of the performance of official duties on the ground that the above act constitutes obstruction of the performance of official duties, in case where he was committed with an outdoor assembly ( demonstration or demonstration) reported by the Commissioner of Busan Local Police Agency that "from Busan to Seoul" and the defendant was committed for obstruction of the performance of official duties on the part of police officers who prevented him from spreading an illegal assembly while

[1] Whether an outdoor assembly or demonstration held after the report is identical to the reported outdoor assembly or demonstration beyond the scope of the report, or is subject to dispersion order because it constitutes “an act clearly deviating from the scope of the reported purpose, date, time, place, method, etc.” as prescribed by Article 16(4)3 of the Assembly and Demonstration Act, the freedom of assembly or demonstration is the fundamental rights of the people guaranteed by the Constitution, and the organizer of the assembly, etc. is not only difficult to anticipate the detailed matters of the method of the assembly or demonstration in advance, and it may be inevitable to change the method in the process of the assembly or demonstration. In full view of the fact that the report and the actual situation are not identical to those of the reported outdoor assembly or demonstration, the report and the actual situation should be evaluated and

[2] The proviso of Article 6(1) of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) does not stipulate the definition of “main place” by requiring the head of a district police agency having jurisdiction over two or more local police agencies to submit a report in cases where the place of outdoor assembly or demonstration belongs to the jurisdiction of two or more local police agencies. However, the above provision does not require the head of a district police agency having jurisdiction over the place of assembly or demonstration to submit a report to all the commissioner of a district police agency having jurisdiction over the place of assembly or demonstration, and does not stipulate that either of the two or more district police agencies having jurisdiction over the place falls under the district police agencies having jurisdiction over the district police agency having jurisdiction over the district police agency. Thus, in light of the constitutional provisions on guaranteeing freedom of assembly and demonstration, the purport of the report system, supplementation of reported matters, and the procedure provisions on the notification and restriction measures of prohibition, a report can be deemed lawful if it conforms to the contents and actual contents of the report under each subparagraph of Article 6(1) of the Assembly and Demonstration Act.

[3] The case holding that in a case where the defendant, the secretary general of the Pacific War Victims' Bereaved Family Council, was indicted on charges of interfering with the suppression of demonstration by failing to comply with the police officer's request to stop driving on the part of police officers for the reason of illegal assembly, etc. and causing injury to them, the court below erred in the misapprehension of legal principles as to the crime of obstruction of performance of official duties or obstruction of performance of official duties by failing to comply with the duty of the police officer's request to stop driving on the part of the police officer, etc. after the defendant reported an outdoor assembly (the demonstration and promotion) with the schedule of the nation-wide that stated the detailed schedule and course of the demonstration in Busan Local Police Agency with the detailed schedule and course of the demonstration at Busan Local Police Agency, and since the report and accompanying documents received the report from the Commissioner of the Local Police Agency, the head of the Busan Local Police Agency having jurisdiction over the place where the above assembly was held, which is located within the jurisdiction of two or more local police agencies, on the ground that the actual contents of the assembly held after reporting, the purpose, date, method, etc.

[1] Article 21(1) of the Constitution of the Republic of Korea; Articles 6(1) and 16(4)3 of the Assembly and Demonstration Act / [2] Article 21(1) and (2) of the Constitution of the Republic of Korea; Articles 6(1) and (2), 7(1), and 8(1) of the Assembly and Demonstration Act / [3] Article 136(1) of the Criminal Act; Articles 6(1) and (2), 7(1), 8(1), and 16(4)3 of the Assembly and Demonstration Act; Article 2(1) of the Enforcement Rule of the Assembly and Demonstration Act

[1] Supreme Court Decision 2006Do9471 Decided July 10, 2008 (Gong2008Ha, 1193), Supreme Court Decision 2008Do3974 Decided October 23, 2008 (Gong2008Ha, 1642), Supreme Court Decision 2009Do10425 Decided March 11, 2010 (Gong2009Do12609 Decided March 11, 201)

Defendant

Defendant

Attorney Demotion

Seoul High Court Decision 2007No2836 decided Dec. 30, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

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

1. The purpose of the Assembly and Demonstration Act (hereinafter referred to as the “Act”) is to ensure a legitimate assembly and demonstration to the maximum extent possible, and protect citizens from an unlawful demonstration, thereby ensuring public safety and order (Article 1). A person who intends to hold an outdoor assembly or demonstration shall submit a report stating certain matters to the chief of the competent police station from 720 hours to 48 hours before the outdoor assembly or demonstration is held (Article 6(1)). The head of the competent police station in receipt of the report may notify the organizer of the supplement of the report within 24 hours after the receipt of the report, if he knows that there are deficiencies in the report (Article 7(1)). If a person fails to comply with the above supplement notice, he/she may prohibit the assembly or demonstration, or place of the outdoor assembly or demonstration or order it to be restricted to maintain traffic order, without any specific reason, to maintain order and order within 12 hours from the date of issuance of the report (Article 8(1) and (12)).

The purpose of the Assembly and Demonstration Act’s reporting system is to protect legitimate outdoor assembly or demonstration by grasping the nature and size of the outdoor assembly or demonstration in advance by making a report, while preventing risks therefrom, and to prepare measures to maintain public safety and order together. As such, such reporting system should be maintained within the extent consistent with Article 21(1) and (2) of the Constitution and the purpose of the Assembly and Demonstration Act (Article 1), which guarantee the freedom of assembly and does not recognize the permission system. Such prior reporting system should be kept in mind so as not to substantially infringe on the freedom of outdoor assembly or demonstration by using it as the permission system for the freedom of outdoor assembly or demonstration (see, e.g., Supreme Court Decisions 98Da20929, Oct. 9, 201; 2008Do3974, Oct. 23, 2008; 2009Do840, Jul. 23, 2009).

For the same reason, the issue of whether an outdoor assembly or demonstration held after the report is identical to the reported outdoor assembly or demonstration beyond the scope of the report, or is subject to dispersion order because it constitutes “an act clearly deviating from the scope of the reported purpose, date, time, place, method, etc.” as prescribed by Article 16(4)3 of the Assembly and Demonstration Act shall be considered as the fundamental rights of the people guaranteed by the Constitution. The organizer of an assembly or demonstration, etc. shall not be able to anticipate all the detailed matters of the method of the assembly or demonstration in advance, and it may be inevitable to change the method in the process of the assembly or demonstration in a specific and individual manner, and shall be evaluated as a whole and judged by comparing the reported contents and actual situation with each other (see, e.g., Supreme Court Decisions 2006Do9471, Jul. 10, 2008; 2009Do10425, Mar. 11, 2010).

Meanwhile, the proviso of Article 6(1) of the Assembly and Demonstration Act stipulates that if an outdoor assembly or demonstration is located under the jurisdiction of two or more local police agencies, a report shall be submitted to the commissioner of the local police agency having jurisdiction over the host area. However, the above provision does not stipulate that all the commissioner of the local police agency having jurisdiction over the place of the assembly or demonstration shall submit the report, but does not stipulate that either of the two or more district police agencies having jurisdiction over the place shall be the chief commissioner of the district police agency having jurisdiction over the place of the assembly or demonstration, the report shall not be deemed to fall under the chief commissioner of the district police agency having jurisdiction over the district police agency having jurisdiction over the place. Thus, in light of the purport of the guarantee and reporting system on freedom of assembly under the Constitution and the procedural provisions on supplementation, prohibition, and restriction measures, the report shall be deemed to have been lawful if it conforms with the actual contents of the report as provided in each subparagraph of Article 6(1) of the Assembly and Demonstration Act, such as the purpose, date, place, organization, participant organization, number, method of demonstration, etc.

2. According to the reasoning of the judgment below and the record, the defendant, the secretary general of the Pacific War Victims' Bereaved Family Council (hereinafter "bereaved Council of this case") on May 21, 2007, with respect to "the legislative bill on support for victims, etc. of forced overseas mobilization under Japanese colonial Rule" deliberated upon by the Legislation and Judiciary Committee of the National Assembly on May 21, 2007, which started before the Japanese consular official located in Busan on May 21, 2007 and continued to appear in Seoul on June 17, 2007 through various national sites, such as racing, Daegu, Daejeon, Daejeon, and Suwon, with the 32 members of the bereaved Family Council of this case on June 18, 2007, the defendant tried to interfere with the above police officers' activities in his name and continued to appear in his name on June 21, 2007 on the ground that he did not comply with the above police officers' activities.

As to the facts charged in this case where the above act of the defendant constitutes the obstruction of performance of official duties and the crime of injury, the court below convicted him for the following reasons.

In other words, the Defendant’s holding date and time under the name of “(S) No. 10:00 to 19:00 of May 21, 2007 for victims of damage to the Pacific War”; and the place of holding is “In front of the Haak-gun, Haak-gun, Sim-dong, Simsan-dong (Seng-dong, Sim-dong, Dong-dong, Dong-dong, Dong-dong, Dong-dong, Dong-dong, Dong-dong, Dong-dong, Dong-dong, Dong-dong, Dong-dong, Dong-dong, Seoul, and the contents of the assembly of this case (hereinafter “the assembly of this case”). However, according to the premise that the Defendant’s act of submitting the report of this case goes to the Japanese Embassy, it is difficult to view that the Defendant’s act of conducting the assembly of this case considerably deviates from the scope of the report, such as the purpose, date, place, and method, etc. of the assembly of this case, and the Defendant’s act of submitting the report of this case to the Seoul Police Station No.2.

3. However, we cannot accept the judgment of the court below for the following reasons.

According to Articles 6(2), 6(1), 7(1), and 8(1) of the Assembly and Demonstration Act, and Article 2(1) of the Enforcement Rule of the same Act, if the organizer of an outdoor assembly or demonstration receives a report in accordance with the attached Form 1 to the head of the competent police authority, he/she shall immediately issue a receipt under the same attached Form (attached Form 3) to the reporter. If the head of the competent police authority finds that the report is incomplete, he/she may notify the organizer of the prohibition of the assembly or demonstration within 12 hours after receipt of the report within 48 hours after receipt of the report, and if he/she refuses to do so, he/she may notify the organizer of the ban of the assembly or demonstration within 48 hours after receipt of the report. However, according to the records, the report and receipt received by the Defendant in connection with the assembly of this case shall be based on the attached Form 1 [Attachment Form 3] and [Attachment 3], and the head of the competent local police authority shall be aware of the fact that the assembly of this case, including the Seoul National Assembly and its branch offices, etc.

Examining the above facts in light of the legal principles as seen earlier, the Commissioner of Busan Local Police Agency, which is the district police agency having jurisdiction over the location of the outdoor assembly or demonstration, received a report on the assembly of this case under the jurisdiction of two or more regional police agencies, and according to the report and attached documents, it can be deemed that the specific schedule and place of each assembly scheduled including the assembly of this case on the day of the report is specified. The actual contents of the assembly of this case, which were held after the report, are not identical to the above report, or are clearly out of the scope of the reported purpose, date, time, place, method, etc., it is difficult to readily conclude that the assembly of this case constitutes an outdoor assembly or demonstration held in violation

4. Nevertheless, the court below erred by misapprehending the legal principles as to the report of outdoor assembly or demonstration under the Assembly and Demonstration Act and failing to exhaust all necessary deliberations, where the court below held that the act of the police officer's restraint on this case's assembly constitutes legitimate execution of official duties subject to protection of the crime of obstruction of performance of official duties, and that the defendant's act of resistance constitutes the crime of obstruction of official duties.

Meanwhile, the judgment of the court below that found the defendant guilty has a relation between the facts charged for the obstruction of performance of official duties and the commercial concurrence, and as long as the judgment of the court below on the part of the obstruction of performance of official duties is reversed, the judgment of the court below is reversed without examining the legitimacy of the grounds of appeal as to

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)