[1] Whether the decision of the Constitutional Court on the main sentence of Article 10 and Article 23 subparag. 3 of the Assembly and Demonstration Act, which is the prohibition and punishment provision of the night demonstration, has the effect of the decision of unconstitutionality (affirmative), and whether the effect of the above decision of unconstitutionality extends to the organizer who was prosecuted for violating the prohibition of night demonstration on the part of the organizer (affirmative)

[2] Standard for determining whether an outdoor assembly or demonstration constitutes “an act clearly deviating from the reported scope”

[1] Article 21(1) of the Constitution of the Republic of Korea; Articles 10, 23 subparag. 1 and 3 of the Assembly and Demonstration Act; Article 47(2) (see current Article 47(2) and (3) of the former Constitutional Court Act (Amended by Act No. 12597, May 20, 2014) / [2] Articles 6(1), 16(4)3, and 22(3) of the Assembly and Demonstration Act; Article 2 of the Enforcement Decree of the Assembly and Demonstration Act

[1] Supreme Court Decision 2008Do4260 Decided July 10, 2014 (Gong2011Do1602 Decided July 10, 2014) (Gong2014Ha, 1622), Constitutional Court en banc Decision 2010Hun-Ga2, 2012Hun-Ga13 Decided March 27, 2014 (Hun-Ga210, 557) / [2] Supreme Court Decision 2008Do3974 Decided October 23, 2008 (Gong2008Ha, 1642), Supreme Court Decision 2010Do14286 Decided June 28, 2012, Supreme Court Decision 2011Do1406 Decided May 23, 2013

Defendant

Defendant

Busan District Court Decision 2009No4073 Decided October 20, 2011

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

1. The decision shall be made ex officio;

The lower court found the Defendant guilty of Article 3-A(a) of the facts charged in the instant case, which applied Article 23 subparag. 1 and the main text of Article 10 of the Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007; hereinafter “the Assembly and Demonstration Act”) to the effect that the Defendant organized night demonstrations.

However, the Constitutional Court rendered a decision on March 27, 2014 that "the part concerning " Demonstration" in the main text of Article 10 of the Assembly and Demonstration Act and the main text of Article 10 among the main text of Article 23 subparagraph 3 of the Assembly and Demonstration Act shall be in violation of the Constitution, as long as the part concerning " Demonstration" in Article 10 of the Assembly and Demonstration Act and Article 23 subparagraph 3 of the same Act apply to " Demonstration from sunset to 24 days from the same day."

Despite the form of expression of the above order, the above decision of the Constitutional Court is deemed to be a partial unconstitutional intent of Article 47 of the Constitutional Court Act that "from the truth-finding to the end of 24 days on the same day" among the above provisions of Article 23 of the Assembly and Demonstration Act is in violation of the Constitution. Thus, it has effect as a decision of unconstitutionality as provided in Article 47 of the Constitutional Court Act. Article 23 of the Assembly and Demonstration Act provides that the part of night demonstration in the main sentence of Article 10 of the Assembly and Demonstration Act is a ground for common punishment, but it differs depending on whether the person who hosts the night demonstration (Article 10 subparagraph 3) is a participant (Article 23 of the Assembly and Demonstration Act). The above decision of the Constitutional Court is against the participant as provided in subparagraph 3 of Article 23 of the Assembly and Demonstration Act, but its decision of unconstitutionality has effect on the organizer who was prosecuted for violating the prohibition of night demonstration.

Therefore, the part concerning the “ Demonstration” under Article 47(2) of the Assembly and Demonstration Act, which read “from the sunset to the 24th day”, becomes retroactively null and void pursuant to the proviso of Article 47(2) of the Constitutional Court Act. As such, this part of the facts charged charged charged, which was charged by applying the above part of the Act, constitutes a case where it does not constitute a crime. Therefore, the lower judgment convicting the above facts charged, which led to

2. The grounds of appeal are examined.

A. As to the second ground for appeal

1) Article 6(1) of the Assembly and Demonstration Act provides that “Any person who intends to hold an outdoor assembly or demonstration shall also present a report stating the purpose, date and time (including necessary hours), organizer (in the case of an organization, including its representative), order keeper’s address, name, occupation, and contact point, organization scheduled to participate in the assembly and demonstration, and the method of such assembly and demonstration, to the chief of the competent police station.” Articles 16(4)3 and 22(3) of the same Act provides that if the organizer of the assembly or demonstration clearly deviates from the scope of the reported purpose, time, place, method, etc., and so forth, it shall be subject to criminal punishment if he/she violates the above provision. Article 2 of the Enforcement Decree of the Assembly and Demonstration Act provides that “The assembly and demonstration’s purpose and purpose are to protect the organizer’s right to use the assembly and demonstration, such as large, loudspeaker, standing signboard, and other facilities indicated by the above demonstration, whether the assembly or demonstration is in progress through the process of relief, destination, etc., and its purpose and method and method of the assembly or demonstration.

2) The lower court found the Defendant guilty of this part of the facts charged, based on the following facts: (a) the date and time of the assembly of this case organized by the Defendant was indicated as “the date and time from May 28 to June 5, 2009 (07:0 to 18:00)” and the method of “broadcasting cars, ampampls, banners, placards, and diskettes,” respectively; (b) the time when the Defendant, who viewed the society of the above assembly, talked to the effect that the long-term productive defects to the union members, was about 17:50 square meters after the end of the assembly on the above report; and (c) the Defendant’s talked about 2 and 10 items of the case, and the number of union members were about 10 items from the car, in light of the background and time of the assembly of this case, and the Defendant and union members’ speech and behavior, etc., the Defendant’s act of clearly deviating from the scope of the organizer of the assembly.

3) However, it is difficult to accept such determination by the lower court for the following reasons.

The summary of this part of the facts charged is that the defendant committed an act clearly deviating from the scope of the reported method by cutting down a tent and intending to grow long-term agricultural life by using the above tree beds and trees, etc., and against this, the defendant was aimed at standing a tent, not to tent but to sit.

According to the evidence duly adopted by the court of first instance, in light of the size and number of wooden beds and trees maintained by the court below, the defendant could not easily remove them at the assembly site, and the defendant could not have completed the assembly on his own because of the expiration of the assembly time, and even according to the record, it is not found at all that the defendant or the participant's personal belongings can be used as a tent roof, and there is no evidence suggesting that the above wooden beds and trees were intended to be used for the purpose of cutting the tent, and there is no evidence suggesting that the defendant et al. exceeded the scope of the initial report. Accordingly, it is difficult to conclude that the facts stated in this part of the facts charged merely because the court below stated in this part of the facts charged are clearly beyond the expected scope by the report, and it is extremely difficult to achieve the purpose of the report system.

Nevertheless, the lower court found the Defendant guilty of this part of the facts charged solely on the grounds stated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on “an act evidently deviating from the reported scope” as provided by Article 16(4)3 of the Assembly and Demonstration Act, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

B. As to the grounds of appeal Nos. 3 and 4

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court and the first instance court, the lower court was justifiable to have found the Defendant guilty of both paragraphs 2 and 3-B(b) of the instant facts charged on the grounds indicated in its reasoning. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

3. Conclusion

Therefore, among the judgment below, the part on June 4, 2009 against the defendant and the part on the violation of the Assembly and Demonstration Act due to night demonstration should be reversed, and all of the remaining convictions against the defendant who have a relation of commercial concurrent crimes or substantive concurrent crimes should be reversed. Thus, the part on the defendant among the judgment 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 Jo Hee-de (Presiding Justice)