2019No44 General traffic obstruction

A women 73. Syeast

Both parties

F.C. (Filing of Prosecutions) and Kim Jong-dae (Trial)

Ulsan District Court Decision 2016No4463 Decided April 12, 2017

Ulsan District Court Decision 2017No489 Decided September 15, 2017

Supreme Court Decision 2017Do15461 Decided January 10, 2019

June 13, 2019

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

The defendant only participated in the assembly participants' participation in the process according to the way that the organizer of the assembly lawfully reported, and even if the police notified the above prior notice of prohibition, such notice of prohibition is in essence infringing on the freedom of assembly and demonstration held by participants in the assembly including the defendant, and thus, is unlawful, and the police first installed a wall to prevent the movement of participants prior to the progress of the assembly, thereby causing traffic obstruction. In light of the above, it cannot be said that the defendant's participation in the above progress constitutes traffic obstruction or illegality.

In addition, the defendant, as a simple participant, thought that the assembly and the progress were lawful, and there was no awareness that the assembly and the progress were illegal due to the deviation from the reported scope, so there was no awareness that the defendant did not have the intention or illegality of interference with the passage of the defendant.

Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, which found the Defendant guilty of the charges of general traffic obstruction, thereby adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

The sentence (a fine of three million won) imposed on the defendant by the court below is too unreasonable.

(b) A prosecutor;

The sentence imposed by the court below on the defendant is too unhued and unfair.

2. Judgment on the Defendant’s assertion of misapprehension of the legal principle

A. Summary of the facts charged

The Korean Democratic Trade Union Federation (hereinafter referred to as the "Private Union Federation") agreed in principle on September 14, 2015 on the structural reform of the labor market at the original Council for Economic and Social Development Affairs (hereinafter referred to as the "Labor and Labor Council"). The agreement of the Labor and Labor Council was strongly against the ‘Embratity', and the collective action against the follow-up measures of the government was taken by the National Labor and Labor Council. However, due to the agreement of the Labor and Labor Council, the interest of the people in the structural reform of the labor market was relatively low, the power of the strike was also lowered accordingly.

The 1st century decided to hold a large scale as a "large scale of the 1st century" jointly with citizens and organizations, such as a democratic behavior against the history of the 1st century (on November 13, 1970) and the 1st fiveth anniversary of the 2nd anniversary of the 1st century's death, the 1st fiveth anniversary of the 1st anniversary of the 53th anniversary of the 1st anniversary of the 1st century's death, the 1st anniversary of the 2nd anniversary of the 1st anniversary of the 1970th anniversary of the 196th anniversary of the 1st century's death, the 1st anniversary of the 5th anniversary of the 1st anniversary of the 2nd anniversary of the 53th anniversary of the 196th anniversary of the 1st century's death, the 1st anniversary of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 1st century.

'The headquarters for the public-private partnership strike' took place on November 14 of the same year with a total of five teams of labor (Seoul Square), farmers (Seoul Square-ro), young people (Seoul Maro Park), and young people (Seoul Maro-ro Park), and the public-private partnership (Seoul Maro-ro Park), and on the same day: 16:00 of the same day, the assembly was gathered on the luminous square located in Jung-gu, Seoul 16:0 and 16:0 of the same day to proceed with "the public-private partnership competition" on the Gabol Gabbol, followed by a notice of "the public-private partnership competition" on the Gabol Gabol-gu, Seoul, and the 68,000 people who participated in the assembly of each sector, who participated in the assembly of this case, and the police square of this case was held on the same day (hereinafter referred to as "the assembly of this case").

The Defendant participated in the above assembly on November 14, 2015, as the secretary general of the regional office of the National Assembly member C.

At around 16:46 on the same day with participants in assemblies such as D, the Defendant occupied the front lane of the intersection (hereinafter referred to as the “instant intersection”) by 1-ro in Jongno-gu Seoul Metropolitan Government, Jung-gu, and gave prior notice of prohibition, and prevented vehicles from using the lanes.

Accordingly, the Defendant conspired with the above participants in the assembly and interfered with traffic.

B. The judgment of the court below

In light of the following circumstances acknowledged by the evidence duly adopted and examined: (a) in light of the fact that police officers warn the participants at the assembly site of this case that traffic obstruction and illegality were illegal, the court below found the Defendant guilty of the crime of interference with general traffic by taking into account the following circumstances: (b) the time of the assembly in this case was very high; and (c) the nature of the assembly and the date and time of the assembly are anticipated to cause a large number of participants in the assembly; and (d) the delivery of the above road was highly likely to cause large number of participants, and it is evident that the number of participants in the assembly and the road would be reduced to a large number of participants, and it cannot be deemed that the police prohibition notice on the prior report cannot be deemed illegal; (c) even if the Defendant participated in the assembly and the team, the assembly and the participant of this case did not participate in the above assembly and the operation, the court below found the Defendant guilty of the crime of interference with general traffic.

C. Judgment of the court below

1) Relevant legal principles

In light of the legislative purport of Article 6(1) of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”), where an assembly or demonstration is conducted on the road after completing lawful reports under the Assembly and Demonstration Act, the traffic of the road can only be restricted to a certain extent. Therefore, in a case where the assembly or demonstration was conducted within the new scope or is conducted differently from the reported details, barring any special circumstance, it does not constitute a general traffic obstruction under Article 185 of the Criminal Act, barring the fact that the traffic of the road was obstructed thereby. However, in a case where the assembly or demonstration considerably deviates from the original reported scope, or it makes it impossible or remarkably difficult to pass through due to serious violation of the construction under Article 12 of the Assembly and Demonstration Act, general traffic obstruction is established (see, e.g., Supreme Court Decision 2006Do755, Nov. 13, 2008).

However, since the scope of the initial report is considerably deviating from the scope of the report, or the participation in an assembly and demonstration that make it impossible or considerably difficult to pass through by interfering with road traffic by violating the conditions under Article 12 of the Assembly and Demonstration Act, all such participants do not necessarily constitute a crime of causing damage to general traffic, as a matter of course, by all the participants. In fact, if the participant was involved in a significant deviation from the reported scope or a serious violation of the said conditions, thereby causing a traffic obstruction, or if not, in light of the participant’s developments leading up to the participation or degree of involvement, etc., the general traffic obstruction is established (see, e.g., Supreme Court Decision 2016Do4921, Nov. 10, 2016).

2) Determination.

In full view of the circumstances, such as the circumstances that can be recognized by comprehensively taking account of the evidence legitimately adopted and examined by the court below, the defendant cannot be deemed to have committed a direct act that may cause traffic obstruction by significantly deviating from the scope of the report or seriously violating the conditions, or as a co-principal of general traffic obstruction. The court below erred by misapprehending the facts charged in this case or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment.

(1) The Democratic Labor Team shall be the Seoul Special Metropolitan City on November 12, 2015 in relation to the National Labor Competitions and the Korean Senior Guns.

On November 14, 2015, 16: 00 to 20:0: 00, the commissioner of a district police agency reported that he will take advantage of the entire delivery of the local police agency's "Seoul Square-Seoul Squares-Seoul Government Office - Sejong-Seoul Gyeongdog- Cheongdog Residents' Center - Cheongdogwon's Community Center - the Seoul Local Police Agency notified that he will take advantage of the entire delivery.

② Although the Defendant was in charge of the secretary general of the regional office of Ulsan-gu National Assembly member C, Ulsan-gu, which was well friendly in the instant progress, it is difficult to deem that the Defendant had been aware of the scope and conditions of the report of the assembly and demonstration in advance or continued the demonstration by recognizing the illegality thereof, and there is no other evidence to acknowledge it.

③ On around 16: 46, the facts charged that the Defendant occupied the road, was already in a situation where the police has already installed a garage and has a control over the daily traffic. However, considering the fact that a large number of drinking walls are installed to prevent ordinary vehicles from driving, the time and place indicated in the facts charged are likely to have a complete control over the traffic of nearby vehicles.

④ The Defendant appears to have simply participated in the assembly and demonstration of this case, and cannot be viewed as having committed a direct act that may cause interference with traffic by leading the assembly and demonstration, or there is no circumstance to deem that there was a functional control over the act through an essential contribution to the assembly and demonstration of this case.

3. Conclusion

Therefore, the defendant's appeal is reasonable, so the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without omitting a request on the defendant's and prosecutor's assertion of unfair sentencing, and the defendant's appeal is again decided as follows.

[Judgment to be used again]

The summary of the facts charged against the defendant is as stated in Article 2-A(a) and Article 2-3(c) of the Criminal Procedure Act, since there is no proof of a crime, it constitutes a case where there is no proof of a crime, the defendant shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the defendant pursuant to Article 58(2) of the Criminal Act shall be announced publicly.

Justices Kim Hyun-hwan

Judges Cho Soo-soo

Judges Noh Jeong-sik