Defendant

Both parties

Route equality (prosecution), scarde, scarde, and scarde (public trial)

Attorney Seog-young

Seoul Western District Court Decision 2012Gohap967 Decided May 7, 2015

The part of the lower judgment against the Defendant and the part of the acquittal on the violation of the Assembly and Demonstration Act due to non-compliance with the dispersion order from July 9, 2011 to July 10, 201 shall be reversed.

Defendant shall be punished by a fine of KRW 1,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The prosecutor's appeal on June 12, 201 against the violation of the Assembly and Demonstration Act due to the failure to comply with the dispersion order is dismissed among the acquittal portion of the lower judgment.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

A) As to the violation of the Assembly and Demonstration Act due to the participation in the night demonstration on June 12, 201 (the first desired bus) (hereinafter “Act”)

According to the purport of the Constitutional Court's decision in March 27, 2014 in the case of 2010Hun-Ga2, 2012Hun-Ga13 (Consolidation), even if the defendant participated in the night demonstration exceeding 24 cc, it should be interpreted that it can not be uniformly evaluated as a violation of the Assembly and Demonstration Act, and that the demonstration can be punished only where it is directly and clearly assessed as a high risk of public peace and order. However, since the demonstration in this case in which the defendant participated was peacefully conducted, the defendant cannot be punished, despite the fact that the defendant was not punished, the court below erred by misapprehending the facts and misapprehending the relevant legal principles.

B) As to each interference with general traffic of June 12, 201 (the first desired bus) and July 9, 2011 (the second desired bus)

In order to realize the freedom of assembly and demonstration, road traffic obstruction in principle is inevitably accompanied, and therefore, it cannot be punished as a general traffic obstruction in principle, and in light of the fact that the Criminal Act provides for the crime of traffic obstruction in addition to general traffic obstruction, it may be punished as a general traffic obstruction only if it causes danger to the lives and bodies of the general public. The demonstration in this case in which the defendant participated is carried out peacefully, and thus, it cannot be deemed that there was no danger to the lives and bodies, and the mere participant of the assembly may not be punished as a general traffic obstruction. Nevertheless, the court below erred by misapprehending the facts and misapprehending the relevant legal principles.

2) Unreasonable sentencing

Punishment (one million won of fine) declared by the court below is too unreasonable.

B. Public prosecutor (misunderstanding of facts and misunderstanding of legal principles as to each acquitted portion in the original judgment)

1) As to the violation of the Assembly and Demonstration Act due to the dispersion order or non-compliance with the first desired bus on June 12, 2011

In light of the situation, method, and time interval as of June 11, 201 when comprehensively considering the situation, method, etc. of notification of dissolution at the time of the instant case, if a dispersion order was issued at around 22:50 on the same day as of June 11, 201, then measures can also be deemed as a dispersion order and thus legitimate dispersion order was issued. However, the lower court acquitted the Defendant on this part of the facts charged, and erred by misapprehending the legal doctrine of dispersion order

2) As to the violation of the Assembly and Demonstration Act due to the dispersion order or non-compliance with the second desired bus on July 9, 2011

Despite the fact that there was a lawful dispersion order by notifying specific grounds for dissolution at the time of dispersion order, the court below acquitted the charged facts, and erred by misapprehending the legal principles of dispersion order under the Assembly and Demonstration Act.

2. Determination

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

1) As to the violation of the Assembly and Demonstration Act due to participation in the night demonstration dated June 12, 201 (the first desired bus)

A) Relevant legal principles

The Constitutional Court rendered a decision on March 27, 2014 that "the part concerning " Demonstration" in the main sentence of Article 10 of the Assembly and Demonstration Act and Article 10 main sentence of Article 23 subparagraph 3 of the Assembly and Demonstration Act shall be in violation of the Constitution as long as the provisions concerning " Demonstration" in Article 10 and Article 23 subparagraph 3 of the same Act apply from sunset to 24 days before the same day," and the above decision of the Constitutional Court, despite the form of expression in the above provision of the Assembly and Demonstration Act, shall be deemed as partly unconstitutional in the part concerning " Demonstration" in the above provision of the Assembly and Demonstration Act, which "from sunset to 24 days after the same day," and thus, it shall be deemed as a decision of unconstitutionality as provided in Article 47 of the Constitutional Court Act (see Supreme Court Decision 2011Do1602, July 10, 2014).

Meanwhile, in determining the unconstitutionality of the main text of Article 10 of the Assembly and Demonstration Act, the reason why the Constitutional Court made a decision of unconstitutionality by specifying the part of the " demonstration from the sunset to the 24th day of the same day" is that it is desirable to leave room for legislators to make a decision on whether to prohibit any demonstration after 24: (a) the issue of whether to prohibit any demonstration after 24: (b) the people's residence and peace and privacy; (c) the situation and circumstances of the demonstration in Korea; and (d) the general sense of values or legal sentiment of the people, etc. (see the above decision of the Constitutional Court); and (d) the rest of the portion (the part of outdoor demonstration after 24:00 in this case) for which a partial decision of unconstitutionality has not been made, regardless of the legislative policy on whether to permit

B) Specific determination

This part of the facts charged is that the defendant participated in the night demonstration from 00:17 on June 12, 201 to 01:25 on the same day, and in light of the above legal principles, the demonstration at night after 24:0 on June 12, 201 is prohibited without the need to determine the danger. Therefore, the defendant's assertion of misunderstanding of facts and misapprehension of legal principles on

2) As to interference with each general traffic of June 12, 201 (the first desired bus) and July 9, 2011 (the second desired bus)

A) The judgment of the court below

The Defendant asserted to the same purport as the grounds for appeal in this part, and the lower court determined that: (a) the relevant provisions of general traffic obstruction and violation of the Act differ from the legal interests protected by the Constitution; (b) general and typical traffic obstruction does not entail traffic obstruction in the formation of the crime of violation of the Act; and (c) general and typically, general traffic obstruction cannot be deemed as minor as much as not being considered separately compared with the crime of the Act; (b) the Defendant, along with the participants of the first and second desired bus demonstration (in the case of the first desired bus, about 700 persons and about 7,00 persons in the case of the second desired bus, about 7,00 persons in the first or second desired bus), it was difficult for the vehicle participants to communicate for a considerable period of time after the road; and (d) the Defendant appears to have been guilty of the facts charged by the Defendant’s participation in the demonstration at the road, with the view that it was considerably difficult or considerably difficult for the vehicle participants to communicate with the road.

B) Determination of the immediate deliberation

(1) Relevant legal principles

The purpose of Article 185 of the Criminal Act is to punish all acts that make it impossible or considerably difficult to pass through by damaging or infusing land, etc., or interfering with traffic by other means, as an offense under the legal interest protected by the law of the general traffic safety of the public (see, e.g., Supreme Court Decisions 95Do1475, Sept. 15, 1995; 2006Do4662, Dec. 14, 2007).

In light of Article 6(1) of the Assembly and Demonstration Act and the legislative intent of the Assembly and Demonstration Act, in a case where an assembly or demonstration is conducted on the road after completing lawful reports, the traffic of the road is bound to be restricted. Thus, in a case where such assembly or demonstration conducted within the reported scope or is conducted differently from the reported contents, barring any special circumstance, it cannot be deemed that a general traffic obstruction under Article 185 of the Criminal Act is established, barring special circumstances, even if the assembly or demonstration obstructed the traffic of the road. However, in a case where such assembly or demonstration considerably deviates from the reported scope, or interferes with the traffic of the road by seriously violating the conditions under Article 12 of the Assembly and Demonstration Act (see Supreme Court Decision 2006Do755, Nov. 13, 2008).

(2) Specific determination

In full view of the following circumstances, including the aforementioned legal principles and facts, which were duly adopted and investigated by the court below, namely, the total number of participants and the scope of places of the demonstration in this case; the specific form and quantity of the demonstration, such as the total time and the moving route of the demonstration site, which was used until the expiration of the demonstration; and the defendant's act, surrounding circumstances, and the specific situation at the scene of the demonstration, it can be sufficiently recognized that the traffic of the only road at the scene of the demonstration was actually obstructed or the specific danger of interference occurred. Therefore, the judgment of the court below to the same purport is just, and there is no error of law by misunderstanding of facts or misunderstanding of legal principles as pointed out by the

B. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

1) As to the violation of the Assembly and Demonstration Act due to the dispersion order or non-compliance with the first desired bus on June 12, 2011

A) Summary of this part of the facts charged

No one shall conduct any demonstration before sunrise or after sunset, and in order to hold an assembly, he/she shall report it in advance, and in receipt of a request from the chief of the competent police station for voluntary dispersion of illegal demonstrations or assemblies, and in receipt of an order for voluntary dispersion, he/she shall dissolve it without delay.

At around 00:40 on June 12, 201, Nonindicted Party 1 (the Nonindicted Party) requested voluntary dispersion on the grounds that Nonindicted Party 1 (the Nonindicted Party) belonging to the same police station delegated by the head of the Busan Young-do Police Station was a night demonstration and an unreported assembly or demonstration prohibited in the △△-dong-dong-gu, Busan, △△△-dong, and requested voluntary dispersion from 02:08 up to 02:08 on 13 occasions.

However, participants of the demonstration including the Defendant did not comply with the dispersion order.

B) The judgment of the court below

The lower court determined that: (a) even in accordance with the investigation report (Attachment of the materials related to the order of dissolution of the first shuttle bus demonstration), the broadcast that existed from 00:40 on June 12, 2011 to 02:08 on the date stated in the facts charged of the instant case is 13 times, not more than 13 times; and (b) the broadcast content is known by the Youngdo Police Station; (c) the number of participants and several minutes of the assembly are conducting an illegal assembly demonstration that has not been reported at night; (d) voluntary dispersion and return home after their voluntary dispersion; (e) it constitutes a request for dispersion, not a dispersion order in the form of the phrases; (b) it is difficult for Nonindicted Party 1 to view that there were two times of the order of dispersion to the effect that “No later than 22:50 on June 12, 2011, the present number of minutes are illegal road occupation, and it is evident that there was no inconvenience to the citizens, as well as that there was no other evidence for two times of the law.”

C) Determination of the immediate deliberation

(1) Relevant statutes and legal principles

Article 24 Subparag. 5 and Article 20(2) of the Assembly and Demonstration Act provides, “Any person who fails to comply with a dispersion order shall be punished by imprisonment with prison labor for not more than six months or by a fine not exceeding 500,000 won.” Article 17 of the Enforcement Decree of the Assembly and Demonstration Act provides, “In order to dissolve an assembly or demonstration pursuant to Article 20 of the Assembly and Demonstration Act, the State police officers authorized by the head of the competent police authority or the head of the competent police authority shall comply with the following order.” The order is provided, “the request for closure declaration against the organizer of the assembly or demonstration, the demand for voluntary dispersion, the dispersion order, and direct dispersion.” Thus, the Assembly and Demonstration Act separates the demand for voluntary dispersion and the dispersion order, and in determining whether a person who refuses the dispersion order is punished pursuant to the Assembly and Demonstration Act, the situation at the time of notification, the method and time of notification, and whether the phrase corresponding to the dispersion order was used at the most important element.

(2) Specific determination

In light of the above legal principles and relevant legal principles, and the records, a thorough examination of the evidence of this case by the court below is just and acceptable, and there is no error of law by misunderstanding facts or misunderstanding legal principles as alleged by the prosecutor.

Therefore, this part of the prosecutor's argument is without merit.

2) As to the violation of the Assembly and Demonstration Act due to the dispersion order or non-compliance with the second desired bus on July 9, 2011

A) Summary of this part of the facts charged

Anyone shall, upon receiving a request from the chief of the competent police station for voluntary dispersion of an illegal demonstration or assembly, and when he/she receives an order for voluntary dispersion due to non-compliance therewith, dissolve it without delay.

Nevertheless, the participants of the assembly, including the Defendant, continued to hold an assembly from July 9, 201 to 15:30 of the following day from July 22:50, 201, by occupying an exclusive lane in front of the △△ Dong-dong, Busan Metropolitan City, and holding out relief.

Non-Indicted 2 requested voluntary dispersion at around 23:05 on the same day on the ground that Non-Indicted 2 was an unreported assembly, and ordered dispersion at around 23:16 on three occasions from the beginning of the order of voluntary dispersion until 00:26 on the following day.

However, the participants of the demonstration including the Defendant did not comply with the dispersion order.

B) The judgment of the court below

The lower court found the Defendant not guilty on the charges on the ground that, at the time of the dispersion order, the reason for dissolution did not specifically notify which falls under any of the subparagraphs of Article 20(1) of the Assembly and Demonstration Act (at the time of the dispersion order, however, at the time of the dispersion order, the demand for dissolution on the ground of failure to report was made, and did not indicate that it was an unreported assembly at the time of the first or third dispersion order). Even if the Defendant did not comply with the lawful dispersion order, it cannot be deemed that the Defendant violated Article 20(2) of the Assembly and Demonstration Act

C) Determination of the immediate deliberation

(1) Relevant statutes and legal principles

Article 20(1) of the Assembly and Demonstration Act provides, “The head of the competent police authority may demand voluntary dispersion of an assembly or demonstration falling under any of the following subparagraphs within a reasonable time and order dispersion if such demand is not complied with.” Article 20(2) of the same Act provides, “When an assembly or demonstration is ordered to be dissolved under paragraph (1), all participants shall immediately dissolve:

Even if Article 20(1)2 of the Assembly and Demonstration Act does not provide for separate dispersion requirements when an outdoor assembly or demonstration subject to an order for dispersion is not reported, such outdoor assembly or demonstration may order dissolution pursuant to the said provision only if it clearly poses a direct danger to the legal interests of others or public peace and order. In a case where an order for dispersion that meets such requirements is not complied with, it shall be deemed that Article 24 subparag. 5 of the Assembly and Demonstration Act can be punished (see Supreme Court en banc Decision 2010Do6388, Apr. 19, 2012).

(2) Specific determination

In light of the following circumstances acknowledged by evidence duly adopted and investigated by the lower court, namely, ① the second desired bus-related demonstration was conducted from July 22, 201 to 15:30 on the following day as an unreported assembly; ② Nonindicted 2’s mitigation, around July 9, 201, requested voluntary dispersion by immediately moving the demonstration to a safe place and requesting a voluntary dispersion; and thereafter, the instant demonstration may cause danger not only to reduce inconvenience and apprehension to vehicle traffic and citizens, but also to the safety of the representative of the demonstration. It illegally occupies a road. This order was issued several times to the effect that: (a) the assembly of this case’s demonstration was not reported and its danger of interference with traffic flow; and (b) the assembly of this case’s assembly of this case’s demonstration of this case’s assembly of this case’s assembly of this case’s assembly of this case’s assembly of this case’s assembly of this case’s assembly of this case’s case’s public order and order after Busan’s assembly of this case’s assembly of this case’s assembly of this case’s order; (c.

Therefore, even if the defendant's non-compliance with this is recognized as violating Article 20 (2) of the Assembly and Demonstration Act, the court below erred by misapprehending the facts or misapprehending the legal principles, so the prosecutor's allegation in this part is with merit.

3. Conclusion

Therefore, there is no reason to appeal on the mistake of facts and misapprehension of legal principles concerning the guilty portion among the judgment below, but the prosecutor's appeal on the violation of the Act due to the failure to comply with the order of dispersion from July 9, 201 to July 10, 201 among the acquittal portion is reasonable, and the guilty portion among the facts charged against the defendant and the new guilty portion in the trial should be sentenced to a single sentence, and each of the above parts of the judgment below is not exempt from reversal. Therefore, without examining the defendant's assertion of unfair sentencing, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act and the acquittal portion as to the violation of the Act due to the failure to comply with the order of dispersion from July 9, 201 to July 10, 201, and it is again decided as follows.

In addition, the prosecutor's appeal against the violation of the Assembly and Demonstration Act due to the failure to comply with the dispersion order on June 12, 2011 among the non-guilty portion of the judgment below is without merit, and it is dismissed under Article 364 (4) of the Criminal Procedure Act, and it is so decided as per Disposition

The facts constituting the crime acknowledged by this court are as follows: (a) Part 4 of the judgment of the court below, which reads “not later than 01:25 on the next day” as “not later than 01:25 on the next day”; and (b) the Defendant’s criminal facts in the judgment of the court below related to “the second desired bus (from July 9 to July 10, 201)” as “the second desired bus (from July 9, 201 to July 10),” and add “1) general traffic obstruction” to “the facts constituting the crime in the judgment of the court below,” and except for addition to the facts constituting the crime at the end of the fifth page of the judgment of the court below, it is identical to the facts

【Additional Crime】

2) Violation of the Assembly and Demonstration Act (non-compliance with the dispersion Order)

Anyone shall, upon receiving a request from the chief of the competent police station for voluntary dispersion of an illegal demonstration or assembly, and when he/she receives an order for voluntary dispersion due to non-compliance therewith, dissolve it without delay.

Nevertheless, the participants of the assembly, including the Defendant, continued to hold an assembly from July 9, 201 to 15:30 of the following day from July 22:50, 201, by occupying an exclusive lane in front of the △△ Dong-dong, Busan Metropolitan City, and holding out relief.

Non-Indicted 2 requested voluntary dispersion at around 23:05 on the same day on the ground that Non-Indicted 2 was an unreported assembly, and ordered dispersion at around 23:16 on three occasions from the beginning of the order of voluntary dispersion until 00:26 on the following day.

However, the participants of the demonstration including the Defendant did not comply with the dispersion order.

The gist of the evidence of the facts constituting an offense acknowledged by this court is as stated in the summary of the evidence of the judgment below, except for the addition of the "1. Investigation Report (Attachment of Documents Relating to Order to Down Bus Assembly and Demonstration" and "1. Investigation Report (Confirmation of the Status of Order to Down Bus Dissolution)" to the summary of the evidence of the judgment below, and therefore, it is acceptable in accordance with Article 369 of the Criminal Procedure Act

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 2(2) and (1)1 of the Punishment of Violences, etc. Act, Article 319(1) of the Criminal Act (joint residence intrusion), Article 185 and Article 30 of the Criminal Act (general traffic obstruction), Article 23 subparag. 3 and the main sentence of Article 10 of the Assembly and Demonstration Act (the point of participation in night demonstration) Article 23 subparag. 3 and Article 10 of the Assembly and Demonstration Act, Article 24 subparag. 5 and Article 20(2) of the Assembly and Demonstration Act (the point of non-compliance with the order of dissolution), each of the choice of fines.

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the former Criminal Act (Amended by Act No. 12575, May 14, 2014)

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Each of the crimes of this case is that the Defendant participated in the night demonstration prohibited by the Defendant, and engaged in traffic obstruction, intrusion on the structure, and non-compliance with the dispersion order. Such acts are not justified only for the purpose of the Defendant’s assertion beyond the bounds of freedom of assembly and expression, and each of the crimes of this case appears to have been damaged by the citizens living around the place of demonstration.

However, the fact that the defendant is merely merely a simple participant of the demonstration of this case, and that it appears that he did not exercise violence in the course of the demonstration is favorable to the defendant.

In addition, the defendant's age, character and conduct, environment, motive and circumstances leading to each of the crimes of this case, the records of the defendant's punishment in the past, circumstances after the crime, equity with the sentencing punishment in the case similar to this case, etc. shall be comprehensively taken into account, and the punishment as ordered shall be determined in the same manner as the sentencing conditions specified in the records and arguments.

Judges Han Young-young (Presiding Judge) and Red Expressions