[1] In a case where the identity of the reported outdoor assembly and the indoor assembly held in reality is not recognized after reporting that an outdoor assembly will be held, whether the dissolution order may be ordered on the ground that the reported outdoor assembly goes beyond the scope of the reported outdoor assembly (negative)

[2] The case where a “in-house assembly” held in a public structure such as a building or government office managed by another person is subject to dispersion order under the Act on Assembly and Demonstration

[1] Articles 6(1), 16(4)3, 20(1) and (2), and 24 subparag. 5 of the Assembly and Demonstration Act / [2] Articles 21(1) and 37(2) of the Constitution of the Republic of Korea; Articles 16(4)2, 20(1)5 and (2), and 24 subparag. 5 of the Assembly and Demonstration Act

[1] Supreme Court Decision 2006Do9471 Decided July 10, 2008 (Gong2008Ha, 1193), Supreme Court Decision 2009Do591 Decided June 9, 201 (Gong2011Ha, 1415) / [2] Supreme Court Decision 2009Do13846 Decided October 13, 201 (Gong201Ha, 2392), Supreme Court en banc Decision 2010Do6388 Decided April 19, 201 (Gong2012Sang, 912)

Defendant 1 and 114 others

Prosecutor

Busan District Court Decision 2010No2565 Decided January 28, 2011

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

1. As to the guilty part of the judgment below

The prosecutor appealed against the guilty portion of the judgment of the court below, but did not submit any grounds for objection.

2. As to the acquittal portion of the lower judgment

We examine the grounds of appeal.

A. Summary of this part of the facts charged and the judgment of the court below

The prosecutor affirmed the judgment of the court below that found the defendant not guilty on the ground that the assembly of this case does not fall under Article 20 (1) 5, Article 20 (2) 5, Article 20 (1) 5, Article 16 (4) 2, and 3 of the Assembly and Demonstration Act (hereinafter “Act”) and Article 30 of the Criminal Act is not subject to dispersion order under Article 24 subparagraph 3, Article 24 subparagraph 2, Article 20 (4) 2 and 3 of the Assembly and Demonstration Act, Article 20 (4) 2 of the Assembly and Demonstration Act, Article 30 of the Criminal Act, and Article 30 of the Criminal Act, on the ground that the assembly of this case is not subject to dispersion order under Article 20 (1) 5 and Article 16 (4) 2 of the Assembly and Demonstration Act, and Article 30 of the Criminal Act.

B. Judgment of the Supreme Court

(1) First, we examine whether the instant assembly clearly deviates from the scope of the purpose, date, time, place, method, etc. reported under Article 16(4)3 of the Assembly and Demonstration Act.

(A) As to the report, etc. of an outdoor assembly or demonstration, Article 6(1) of the Assembly and Demonstration Act provides that a person who intends to hold an outdoor assembly or demonstration shall file a report stating the purpose, date, time, place, organizer, etc. of the assembly or demonstration, the organization and persons scheduled to participate in the assembly or demonstration, and the method thereof shall be submitted to the chief of the competent police station from 720 hours to 48 hours prior to the commencement of the outdoor assembly or demonstration. Article 16(4)3 of the Assembly and Demonstration Act provides that the organizer of the assembly or demonstration shall not engage in any act clearly deviating from the scope of the reported purpose, date, time, place, method, etc. (hereinafter “act beyond the scope of the report”), and Article 20(1) and (2) provides that the chief of the competent police station shall demand the voluntary dispersion of the assembly or demonstration which is unable to be maintained due to an act beyond the scope of the report pursuant to Article 6(1) and order to punish all participants in the assembly or demonstration without delay.

As above, the Assembly and Demonstration Act requires a prior report on an outdoor assembly or demonstration. As such, an indoor assembly that does not require a prior report cannot be ordered to be dissolved on the ground that it did not make a prior report.

Furthermore, whether an assembly or demonstration actually held exceeds the scope of report under Article 16(4)3 of the Assembly and Demonstration Act shall be determined on the basis of whether the overall overall identity is recognized in comparison with the actual situation of the assembly or demonstration held as a result of the initial report filed by the organizer (see, e.g., Supreme Court Decision 2006Do9471, Jul. 10, 2008). In a case where the identity of the reported outdoor assembly and the actual indoor assembly is not recognized, as in a case where an indoor assembly and the actual indoor assembly are held without an indoor assembly, unlike the reported contents, in a case where an indoor assembly and the actual indoor assembly are held without an indoor assembly, such indoor assembly are separate assembly without a prior report, and thus, it cannot be ordered to be dissolved on the ground that it constitutes an act beyond the scope of the reported outdoor assembly.

(B) According to the reasoning of the lower judgment, the lower court determined that the Defendants’ act did not constitute an act beyond the scope of report under Article 16(4)3 of the Assembly and Demonstration Act on the ground that the Defendants did not hold an outdoor assembly reported in front of the Busan Regional Labor Office or near it and gathered individually or on a small scale, and held an assembly on the first floor street of the first floor, since it is recognized that the Defendants’ act did not constitute an act beyond the scope of report under Article 16(4)3 of the Assembly and Demonstration Act.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is just and acceptable, and there was no error by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine as to acts beyond the scope of reporting under Article 16(4)3 of the Assembly

(2) Next, we examine whether the instant assembly disturbs order such as assault, intimidation, damage, and fire prevention under Article 16(4)2 of the Assembly and Demonstration Act.

(A) According to the reasoning of the lower judgment, the lower court determined that the Defendants’ act constituted “the act of disturbing order by assault, intimidation, destruction, fire prevention, etc.” under Article 16(4)2 of the Assembly and Demonstration Act should be evaluated as “the act of assault, threat, damage, or fire” or “an act corresponding thereto.” ① The Defendants did not commit violence, intimidation, destruction, or fire prevention at the time of entering the Busan Regional Labor Administration or an assembly on the first floor of that building; ② the Defendants entered the 1st floor of the Busan Regional Labor Administration through the door door by individually or trio even at the time of the above assembly; ② the Defendants did not act to be deemed as violence or disturbance; ③ the Defendants did not enter the 1st floor of the Busan Regional Labor Administration building, in principle, which was a place where access to the general public was permitted; ④ the Defendants did not interfere with the order of assembly, which was an indoor assembly, and thus, did not constitute “an act of disturbing order, etc., under the circumstance that they did not interfere with the order of assembly and order.”

(B) However, we cannot agree with the above determination by the court below for the following reasons.

1) Although freedom of assembly has a fundamental right guaranteed in our Constitution, if necessary for national security, maintenance of order, or public welfare, it may be limited by law to the extent that such fundamental contents are not infringed (Article 37(2) of the Constitution). The Assembly and Demonstration Act requires voluntary dispersion against “an assembly which is unable to maintain order due to an act that disturbs order due to violence, intimidation, destruction, fire prevention, etc.” (Article 20(1) of the Assembly and Demonstration Act) and provides that the order of dispersion may be issued in the same context (Article 20(1) of the Assembly and Demonstration Act).

Meanwhile, an indoor assembly may be held without a prior report under the Assembly and Demonstration Act, but its freedom may be restricted if necessary for the protection of other important legal interests. Therefore, even in a case where an indoor assembly is held in a building managed by another person, it shall be deemed as an object of dispersion order in a case where the assembly’s purpose, number of participants, method of assembly, behavior, etc., such as falling under Article 20(1)5 and Article 16(4)2 of the Assembly and Demonstration Act, which makes it impossible to maintain order by causing violence, intimidation, damage, fire-prevention, etc. (Article 20(1)5 and Article 16(4)2 of the Assembly and Demonstration Act, poses direct and apparent danger to other person’s legal interests or public peace and order. Even if the place of assembly is indoor of a public structure, such as a government office, etc., but it is not a place where it is generally permitted to hold the assembly, so long as it is detrimental to the peace of the building, or if it is not possible to maintain order, it shall be deemed as an object of dispersion order exceeding the freedom of assembly.

2) According to the reasoning of the first instance judgment and evidence adopted by the lower court, ① Union members belonging to the Busan High Court and the Ulsan High Court on August 7, 2009, held an assembly before the competent labor office, port office, and tugboat business entity. In particular, the Busan High Court held an assembly to urge the Government to negotiate and arbitrate 15 times before the Busan High Court from August 18, 2009 to October 12, 209. ② The Head of the Busan High Court and the Head of the Busan High Court and the Head of the Busan High Court and the Head of the Busan High Court demanded the Busan High Court to have the authority to request the public petitioners from the Busan High Court 1 to the Busan High Court 200 days after having visited the Busan High Court 1's office building and the Head of the Busan High Court 3rd High Court 20 days after having visited the Busan High Court 1's office building and the Head of the Busan High Court 1's 3rd District Police Office to the Busan High Court 1's general meeting.

In light of the following circumstances and records revealed as above, the Busan Regional Labor Office is difficult to view it as an open place where the general public or civil petitioners are allowed to voluntarily hold an assembly within the building, such as employment stability and mediation of labor-management disputes. The Defendants’ access to the building, which is the place of the assembly of this case; the purpose and size of the assembly; the method and duration of the assembly, the size and structure of the space of the building in which the assembly of this case was held; the extent of the petitioner’s access to the building; and the progress of the assembly of this case’s assembly, the degree of interference with public officials’ access to the building in this case’s situation; and other circumstances, the Defendants’ failure to comply with the demand for eviction by taking advantage of the fact that the Defendants invaded the office building of this case without permission, and interfered with the demand for withdrawal by going against other persons’ legal interests, such as the right to manage the building’s peace and the right, etc., and thereby causing direct and obvious danger to public peace and order.

Nevertheless, the court below found the Defendants not guilty on the ground that the assembly of this case does not constitute an assembly subject to dispersion order under Articles 20(1)5 and 16(4)2 of the Assembly and Demonstration Act, solely based on its stated reasoning. The court below erred by misapprehending the legal principles as to the above provision of the Act, and thereby making a judgment.

3. Scope of reversal

As above, among the facts charged in the instant case against the Defendants, there exists a ground to reverse the violation of the Act by refusing a dispersion order, and the facts charged against the violation of the Punishment of Violences, etc. Act (joint residence intrusion) which the court below found guilty should be sentenced to a single punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the entire judgment of the court below

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)