2015Do8055 Violation of the Punishment of Violences, etc. Act (joint owners)

2) Violation of the Assembly and Demonstration Act

A

Defendant and Prosecutor

Ulsan District Court Decision 2015No105 Decided May 15, 2015

December 22, 2017

The judgment below is reversed, and the case is remanded to the Ulsan District Court.

The grounds of appeal are examined.

1. As to the prosecutor's grounds of appeal

A. The Assembly and Demonstration Act following the dispersion Order and non-compliance of June 12, 2011 (hereinafter “FirstH-related”)

Violations Part

1) Articles 20(1)1 and 20(1)2 of the Assembly and Demonstration Act (hereinafter “Act”)

An assembly or demonstration in violation of the main sentence of Article 10 and a failure to report under Article 6 (1).

An assembly or demonstration is subject to a dispersion order and the separate dissolution requirements are not prescribed.

(2) If the outdoor assembly or demonstration directly affects the legal interest of others or public peace and order;

may order dissolution in accordance with the provisions of this section only if the risk has been clearly caused; and

Punishment pursuant to Article 24 subparagraph 5 of the Assembly and Demonstration Act only if a person fails to comply with an order of dissolution meeting such requirements.

(1) The Supreme Court en banc Decision 2010Do6388 Decided April 19, 2012, etc. (see, e.g., Supreme Court en banc Decision 2010Do

Article 20 (3) of the Assembly and Demonstration Act requires voluntary dispersion under paragraph (1), notification of dispersion order, etc.

The matters necessary for the meeting shall be prescribed by the Presidential Decree. The meeting and time according to the delegation shall be

Article 17 of the Enforcement Decree of the Assembly and Demonstration Act (hereinafter referred to as the "Enforcement Decree of the Assembly and Demonstration Act") is Article 20 of the Act.

In order to dissolve an assembly or demonstration, the head of the competent police authority or the head of the competent police authority;

National police officers authorized to engage in the following activities shall comply with the following order: Provided, That the Act shall apply:

20 In cases of an assembly or demonstration referred to in Article 20 (1) 1, 2, or 4, and the organizer or supervisor thereof;

If the person in charge of communication, the person in charge of liaison, or the order keeper has no place of assembly or demonstration, the declaration of termination

(1)the request may be omitted, at the same time, for a conclusion declaration in each subparagraph, and the request therefor.

In the event of continuing an assembly or demonstration without complying with or despite a conclusion declaration, direct participation in the assembly or demonstration;

A request for voluntary dispersion is made after they have requested voluntary dispersion, but they do not comply with a request for voluntary dispersion.

order of voluntary dispersion at least three times, and the participants, despite the order of dispersion, shall be

It is determined that it can be directly dissolved if not.

2) In light of the language, content, structure, etc. of the foregoing provision, the dispersion order is voluntarily dissolved.

Voluntary dispersion is imposed on participants of the demonstration who do not comply with the request, as such,

(2) If such dissolution order has been issued, such dissolution order has been issued.

upon the progress of the demonstration, whether or not the declaration of conclusion or the demand for voluntary dispersion has already been made

If the text and content of the reporting broadcast, or a visual medium, such as an electronic sign board at the time of broadcasting, is used together, such medium;

In light of the contents and location of the sign, the interval and frequency of the broadcast, etc., a dissolved person from the perspective of social average persons;

It is sufficient to know that there has been an order, and the term "to order dissolution" is used.

It is not necessary to indicate that it is an order of dissolution.

3) The lower court’s purport or principle that the police broadcast related to the instant demonstration demands voluntary dispersion

reasonable dissolution order was issued on the ground that it is a broadcast of an assembly or demonstration permit.

As we affirm the judgment of the first instance court, it is difficult to see that the first instance court's order relating to "H" among the facts charged in this case

The violation of the Assembly and Demonstration Act was acquitted due to non-compliance.

4) However, the lower court’s determination is difficult to accept for the following reasons. The lower court’s determination is with merit.

According to the evidence duly adopted by the first instance court, the following facts are revealed.

A) The instant demonstration is located in the Youngdo-gu Busan on June 11, 2011 without reporting the demonstration.

It started in front of the door of the Industrial Young-do Factory, and continued to exceed the self-determination.

B) During that process, approximately 400 participants of demonstration from around 00:45 on June 12, 201 to Busan

Most of the laness located in the enclosed-gu in Yeongdeungpo-do and running to the Han Heavy Industries Stacking ahead of Korea.

from around 01:25 on the same day, some participants are going beyond the Han Heavy Industries Co., Ltd.

The aspects of the demonstration, such as writing, have been cut down.

C) The Busan Territorial Police Station’s position to the police station ordered by the head of the competent police authority

From June 12, 2011, around 00:36, around 00:40, around 00:41, around 00:42, around 00:50, around 01:01, around 01:03:

around 02:07, around 02:08, to be known to the Youngdo Police Station on nine occasions in total. Several minutes of the participants at the meeting;

We are conducting an illegal assembly demonstration which has not been reported at night. They are voluntarily dissolved and ear to the house.

A. A broadcast was made with the content of “IENEA”.

D) The slope Y belonging to the Busan Youngdo Police Station is a police broadcast against the participants of the instant demonstration.

Along with the volume of the broadcast, it was intended to make a voluntary demand for dispersion and a dispersion order as the broadcast content.

An investigation report was filed.

5) Examining these circumstances in light of the legal principles as seen earlier, the police broadcast above is as follows.

For reasons, there is room to view that it constitutes a legitimate order of dissolution under Article 20(1) of the Assembly and Demonstration Act.

The decision is judged.

A) The progress of the instant demonstration, the content of the police broadcast, the interval and frequency of the broadcast, and the time of the broadcast

Comprehensively taking account of the situation of the demonstration, the demonstration of this case was not reported at night, and Article 20 of the Assembly and Demonstration Act

Article 1 (1) and (2) of the Assembly and Demonstration Act and Article 17 (proviso) of the Enforcement Decree of the Assembly and Demonstration Act may be omitted.

applicable if any.

B) Telecommunication authorized by the head of the competent police authority directly for the police broadcast of this case

The demand for voluntary dispersion was made to the participants of the demonstration, and the participants of the demonstration did not comply with it.

Legal interests or public peace of others, such as running to the Jin Heavy Industries, going beyond the Han Heavy Industries fence, etc.

Ordering dissolution at least three times under the circumstances in which the direct risk to the order has been clearly caused;

may be deemed to have been accepted.

C) It is sufficiently known that the participants of the demonstration have been ordered to dissolve through the police broadcast.

I seem to have been.

6) The Supreme Court had already issued a lawful dispersion order in the demonstration on June 12, 2011.

On the premise of the non-compliance with the dispersion order, the appellate court's judgment that found the defendant guilty is acceptable.

F. (Supreme Court Decision 2014Do11817 Decided March 12, 2015).

7) If there are circumstances, the lower court’s language and text of the police broadcast following the progress of the demonstration.

After hearing the contents, the location of the broadcast vehicle, the situation of demonstration at the time of the broadcast, etc., the police broadcast

(1) whether a dissolution order is a legitimate order of dissolution that is issued with procedural requirements.

have been determined by the court.

Nevertheless, the lower court’s previous judgment on the demonstration on June 12, 2011 in the instant case is inconsistent with the Supreme Court’s judgment.

The court below determined that it was difficult to view the police broadcast as a legitimate order for dissolution.

In light of the legal principles as to the dissolution order under Article 20 (1) of the Act, which led to failure to exhaust all necessary deliberations.

Such errors affected the judgment. The ground of appeal assigning this error is with merit.

B. The remaining grounds of appeal

The Prosecutor appealed to the part other than the acquittal of the lower judgment, but within the statutory period.

The appellate brief was not filed, and the reasons for the appeal was not stated in the petition of appeal.

2. As to the Defendant’s ground of appeal

The defendant did not file an appellate brief within the statutory period, and the defendant did not file an appellate brief, and the appellate brief also state the grounds therefor.

was not re-issued.

3. Scope of reversal

Of the lower judgment, the part regarding the violation of the Assembly and Demonstration Act due to the failure to comply with the dispersion order on June 12, 2011 was seen earlier.

on the same ground. However, this part and the remaining parts found guilty by the court below are reversed.

Division is guilty on the ground that it is necessary to impose one punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act.

Part shall also be reversed together with the non-guilty part.

On the other hand, among the facts charged in the instant case, the part on violation of the Act due to participation in the nighttime demonstration related to the 'First H'

Inasmuch as the part concerning general traffic obstruction is in a mutually competitive relationship (Supreme Court Decision 2008Do208 Decided August 25, 201).

10960, etc.) After remanding the case, the court below shall also examine this part of the case and then publish the number of such crimes.

It should be limited.

4. Conclusion

The judgment below is reversed and the case is remanded to the court below for further proceedings consistent with this Opinion.

We conclude that it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won

Chief Justice Park Jong-young

Justices Kim Jae-tae

Justices Kim Jae-in