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The judgment below
The conviction portion is reversed, and this part of the case is remanded to the Seoul Central District Court.
Reasons
The grounds of appeal are examined.
1. The judgment of the court below
A. Of the facts charged in the instant case, the summary of the Defendants’ violation of the Assembly and Demonstration Act is as follows: (a) from May 28, 2008 to May 00:00 to 00:25, the Defendants conducted outdoor demonstrations after self-determination in the manner of running together with other participants of the demonstration in front of the Seoul Viewing-ro 1, Jung-gu, Seoul.
B. The lower court found the Defendants guilty of this part of the facts charged on the ground that the Defendants actively conducted a demonstration, not merely by the police, on the ground that the Defendants were arrested from May 28, 2008 to 00:15 after the commencement of arrest.
2. Judgment of the Supreme Court
A. According to Article 2 subparagraph 2 of the Assembly and Demonstration Act, the term “ Demonstration” means an act of a group of people to have an influence on the opinions of many unspecified persons or to have a pressure by showing their power or power, at a place where the general public can freely pass, such as roads, squares, parks, etc. with a common purpose.
In addition, whether a specific act of gathering by many people at a certain place constitutes a demonstration conducted as a part of a collective expression with a common purpose should be assessed in accordance with whether the act can be seen as an act affecting the opinions of many unspecified people or an act of pressure by considering the subjective aspects, such as the attitude of the act, the number of participants, and the internal ties among them, etc. (see Supreme Court Decision 201Do2871, Nov. 13, 2014). (2) In addition, even according to the reasoning of the lower judgment, the period of time when the Defendants participated in another demonstration at the place of demonstration as described in this part of the facts charged after self-determination of the Defendants was about 15 minutes until 00:15, in which the arrest began. Moreover, the Defendants have already been spread on May 8, 2008 by the police around 0:00, and have discontinued the demonstration.