Whether the decision of the Constitutional Court on the main sentence of Article 10 and Article 20 subparag. 3 of the former Assembly and Demonstration Act, which is the prohibition and punishment provision of the outdoor assembly or demonstration at night, has the effect of the decision of unconstitutionality (affirmative), and whether the above decision of unconstitutionality becomes effective against the organizer who is prosecuted for violating the prohibition of outdoor assembly at night (affirmative)

Article 21(1) of the Constitution of the Republic of Korea; Articles 10, 20 subparag. 1, and 3 (see current Article 23 subparag. 1 and 3) of the former Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007); Article 47(2) of the former Constitutional Court Act (Amended by Act No. 12597, May 20, 201); Article 47(2) of the former Constitutional Court Act (see current Article 47(2) and (3))

Supreme Court en banc Decision 201Do1602 Decided July 10, 2014 (Gong2014Ha, 1622), Supreme Court Decision 2009Do8586 Decided July 24, 2014, Supreme Court en banc Decision 2011Do7505 Decided August 20, 2014, Constitutional Court en banc Decision 201Hun-Ga29 Decided April 24, 2014 (Hun-Ga211, 714)

Defendant

Defendant and Prosecutor

Attorneys Kwon Du-con et al.

Seoul High Court Decision 2006No1719-2, 2219, 207No2938, 2008No717 decided June 13, 2008

The conviction part of the judgment below is reversed, and that part of the case is remanded to the Seoul High Court. The prosecutor's appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. As to the hosting of night outdoor assembly

The lower court affirmed the first instance judgment convicting the Defendant of the violation of each Act, among the facts charged in the instant case, of the violation of Article 20 Subparag. 1 and the main sentence of Article 10 of the former Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007; hereinafter “former Assembly and Demonstration Act”), since the time of sunset over 13 times from May 14, 2004 to March 30, 207, the Defendant was holding a night outdoor assembly at night at least 24:00 and from June 21, 2004 to June 22:05 of the following day.

On April 24, 2014, which was following the pronouncement of the lower judgment, the Constitutional Court rendered a decision that “The part on Article 10 of the former Assembly and Demonstration Act and Article 10 main text of the former Assembly and Demonstration Act among Article 20 subparag. 3 of the former Assembly and Demonstration Act shall be unconstitutional, which applies to an outdoor assembly or demonstration from sunset to 24 days from the same day.”

This decision of the Constitutional Court is deemed to have the purport of partial unconstitutionality that the part of “from sunset time to 24:00 on the same day” under Article 20 of the former Assembly and Demonstration Act is in violation of the Constitution. As such, Article 20 of the former Assembly and Demonstration Act is effective as a decision of unconstitutionality as prescribed by Article 47 of the Constitutional Court Act. Furthermore, Article 20 of the former Assembly and Demonstration Act is based on the common punishment of the part of the night outdoor assembly or demonstration. However, the statutory punishment is different depending on whether the person who hosts an outdoor assembly or demonstration at night (Article 10 subparag. 3) is a party (Article 20) or a simple participant (Article 10 subparag. 3 of the former Assembly and Demonstration Act). Therefore, the above decision of the Constitutional Court is against the participant as prescribed by Article 20 of the former Assembly and Demonstration Act, but the above decision of unconstitutionality was made as to the part of the night outdoor assembly during the given period. Thus, the above decision of unconstitutionality has effect as to the promoter who was prosecuted for violating the prohibition of the above.

As such, among the above provisions on the outdoor assembly under the former Assembly and Demonstration Act, the phrase “from sunset time to 24:00 on the same day” becomes retroactively null and void pursuant to the proviso of Article 47(2) of the Constitutional Court Act. As such, the Defendant’s portion of holding each night outdoor assembly before 24:00 over 13 times before and after sunset, and the part of holding the night outdoor assembly from June 21, 2004 to 24:00 on the same day, which was prosecuted by applying the above provision of the Act, constitutes a case where the Defendant’s portion of holding the said outdoor assembly is not a crime, and therefore, the part convicting this part of the lower judgment as to this part of the facts charged

B. As to the remainder

After compiling the adopted evidence, the court below acknowledged the facts as stated in its holding, and determined that the defendant is liable for the violation of the Assembly and Demonstration Act (the act of disturbing order, deviation from the scope of report, holding of prohibited assemblies, holding of unreported outdoor assemblies, and holding of reported outdoor assemblies) over 14 times from June 16, 2001 to June 29, 207 as co-principals of the defendant, general traffic obstruction and special injury caused by obstruction of performance of official duties (excluding the part which acquitted part of the general traffic obstruction).

In light of the relevant legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles regarding joint principal offenders, or by exceeding the bounds of the free evaluation of evidence

2. As to the Prosecutor’s Grounds of Appeal

The lower court reversed the part of the first instance judgment convicting the Defendant of this part of the charges for general traffic obstruction on the ground that it cannot be deemed that there was evidence of crime, based on the circumstances as stated in its reasoning, as to the charges for general traffic obstruction as of December 6, 2006, March 10, 2007, March 25, 2007, March 30, 2007, April 1, 2007, June 29, 2007, and June 29, 2007.

In light of the relevant legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on joint principal

On the other hand, although the prosecutor submitted a written appeal to the effect that he/she is dissatisfied with the remainder of innocence among the judgment below, he/she did not state the grounds for appeal on that part.

3. Conclusion

As seen above, among the violations of the Assembly and Demonstration Act due to the holding of the night outdoor assembly, each of the said 13 times prior to 24:00, and the organizing part of the outdoor assembly from the sunset time to 24:00 on the same day from June 21, 2004 shall be reversed. The organizing part of the outdoor assembly from June 21, 2004 to 24:00 on the day after sunset shall also be reversed. The organizing part of the outdoor assembly from June 22, 2004 to June 22, 2004 shall also be reversed.

In addition, as long as the part of violation of each Act due to the holding of night outdoor assembly is reversed, the conviction part of the judgment below as to each of the remaining crimes on which one sentence is imposed should be reversed on the ground that there is concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the conviction part of the judgment below is reversed in its entirety

Therefore, the part of the judgment below's conviction is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Ko Young-han (Presiding Justice)