[1] Whether the so-called "one-person demonstration" which is a punishment before the company in order to guarantee employment constitutes a " demonstration" under Article 2 subparagraph 2 of the Assembly and Demonstration Act (negative)

[2] Whether all participants in an outdoor assembly or demonstration may be deemed to be the organizer of an assembly or demonstration by applying the theory of joint principal offense to an assembly or demonstration (negative)

[1] In order to achieve the purpose of guaranteeing employment, the so-called "one person's demonstration" in front of the company does not constitute a " demonstration" subject to reporting under the Assembly and Demonstration Act, and the demonstration subject to reporting should be "an act affecting the opinion of a large number of unspecified persons" or "an act under pressure". Since the other party who intends to deliver his/her own opinion is limited to the management of a company that is not an unspecified number of persons, the above "one person's demonstration" cannot be deemed to constitute a "auction" under the above Act.

[2] As a matter of course, an assembly or demonstration is based on a combination of two or more persons, it is unreasonable to regard all those who participated in an unreported outdoor assembly or demonstration as its principal offender, i.e., organizer of an assembly or demonstration, in violation of the principle of no punishment without law.

[1] Article 2 subparag. 2 and Article 6 of the Assembly and Demonstration Act / [2] Article 2 subparag. 1 and 2 of the Assembly and Demonstration Act, Article 30 of the Criminal Act

Defendant 1 and four others

Maximumization

Attorney Park Jong-dae

Defendants are not guilty.

The summary of the judgment against the Defendants is published.

1. Summary of the facts charged in this case

The summary of the facts charged in the instant case was Defendant 1, 2, 3, and 4 employed by the Youngsung Electronic Co., Ltd., a partner of Samsung SDR (SDR) Co., Ltd. (hereinafter “SDR”), and Defendant 5 was another partner.

SamsungSDI decided to suspend restructuring of the business sector, such as the Brazil which has occurred by the enemy for several years due to the influence of the digitization of world Dplate market and the decline in exchange rate, and sent on January 15, 2007 notice to each of the above companies, which are fair collaborative companies, and the above companies, as of February 15, 2007, that the contract will be terminated.

As a result, 12 workers belonging to each of the above companies demanded employment security in SamsungSI for four days from January 23, 2007, and they were punished by an implied demonstration. The SamsungSI controlled the above 12 workers' internal access on January 29, 2007 at the request of the representative director of each of the above companies.

A person wishing to hold an outdoor assembly or demonstration shall submit a report stating the purpose, date, place, organizer, person in charge of liaison, address, occupation, contact point, organization scheduled to participate, number of participants, and method of demonstration to the chief of the competent police station from 720 to 48 hours before the outdoor assembly or demonstration. However, the Defendants decided to hold a non-reported outdoor demonstration under the pretext of the so-called "sovereign strike for departure" on the ground that the contract period remains yet.

Defendants did not report to the chief of the competent police station on January 31, 2007, from around 16:50 to around 18:23, 2007, Defendant 1 opened a demonstration in the same way 17 times in total from that date to February 7, 200 of the same year, on the following grounds: (a) Defendant 1 prepared in advance, in the south of Samsung-gun, Samsungcheon-gun, Samsungcheon-gun, Gacheon-gun, Gacheon-do, and “a partner who wishes to guarantee employment, i.e., the right of withdrawal from the right of withdrawal, i., the right of withdrawal from the right of withdrawal, i.e., a partner who wants to guarantee employment.”

As a result, the Defendants conspired with the chief of the competent police station to make the outdoor demonstration common without reporting it to him.

2. Defendants’ assertion

In the case of this case, the defendants asserted that the so-called "one person's demonstration" that is not subject to reporting under the Assembly and Demonstration Act, even if it falls under domestic demonstration, it is not jointly hosted, and that there is no public collusion among the defendants, and even if the defendants' act constitutes the elements of a crime, it is justified as it constitutes a legitimate act, and thus, the defendants' liability is dismissed as it is not possible to expect.

3. Stopto;

(a) Guarantee of freedom of assembly and demonstration;

(1) The Constitution of the Republic of Korea provides that all citizens shall have the freedom of assembly and association (Article 21(1) of the Constitution of the Republic of Korea), and permission for assembly and association shall not be granted (Article 21(2) of the Constitution of the Republic of Korea). The State has the duty to verify and guarantee the fundamental human rights of an individual (Article 10 of the Constitution). All freedom and rights of the people may be restricted by Act only if necessary for national security, maintenance of order, or public welfare, and even if limited, the essential contents of freedom and rights shall not be infringed (Article 37(2) of the Constitution).

(2) Accordingly, the purpose of the former Assembly and Demonstration Act (amended by Act No. 8424, May 11, 2007; hereinafter “Act”) is to properly harmonize the guarantee of the right to assembly and demonstration and the public safety and order by guaranteeing lawful assembly and demonstration to the maximum extent possible and protecting citizens from unlawful demonstration (Article 1 of the Act). In the case of an outdoor assembly or demonstration, the prohibition of violent assembly or demonstration is prohibited (Article 5(1)2 of the Act) or a report to the chief of the competent police station prior to a certain time on the outdoor assembly or demonstration (Article 6 of the Act). However, by prescribing that it shall not interfere with peaceful assembly or demonstration or disturb order by means of violence, threat, or any other means (Article 3 of the Act), thereby clarifying the legislative purport that the freedom of assembly and demonstration, which is fundamental rights under the Constitution, should be guaranteed to the maximum extent possible.

(b) the constitutional value of freedom of assembly (or demonstration);

(1) The freedom of assembly has a dual constitutional function, which consists of an individual’s personality creation and a part of democracy. Within our constitutional order, which takes human dignity and free character creation as the highest value, the freedom of assembly is also a fundamental right that contributes to an individual’s self-determination and personality creation as well as a fundamental right that contributes to the formation of public opinion by collectively expressing one’s opinion and arguments through an assembly (see Constitutional Court Order 2000Hun-Ba67, 83, Oct. 30, 200).

(2) The freedom of assembly is a right to make it possible to defend against unjust infringement of the national public authority, and it is a basic right prohibiting an individual from participating in an assembly or from compelling an individual to participate in an assembly. As seen earlier, the freedom of assembly belongs to an essential element to function as a democracy. As such, the freedom of assembly as an objective value of the Constitution bears the obligation of the State to protect an assembly from a third party’s interference (including interference by the national public authority).

(3) Therefore, in interpreting and applying the Assembly and Demonstration Act, a State agency shall fully consider the constitutional meaning, function, and value of the freedom of assembly and demonstration, and the State shall not infringe on or suppress the freedom of assembly and demonstration due to the application of indisrush laws.

4. Determination

A. Whether the Defendants’ act constitutes a demonstration

(1) Article 2 Subparag. 2 of the Assembly and Demonstration Act defines “ Demonstration” as an act that a large number of people, with common purposes, proceeds in places where the public may freely pass, such as roads, squares, parks, etc., or leads to an act that may affect the opinion of an unspecified number of people or a pressure by showing power or power.

(2) According to the above provision, the term “auction” includes the conceptual elements of “an act that affects, or imposes pressure on, the opinion of a large number of unspecified persons”, “a large number of persons” with the common purpose.

(3) In the case of the instant Defendants, one of the Defendants asserted employment guarantee, etc. as workers belonging to SamsungSI’s cooperation company, and cited a ticket containing the above assertion before SamsungSI’s sentiments or South and North Korea. In substance, the Defendants did not constitute a "one-person demonstration" under the Assembly and Demonstration Act in order to achieve a specific purpose of guaranteeing employment at the time and place specified in the facts charged. This does not constitute a " demonstration" subject to reporting under the Assembly and Demonstration Act.

Furthermore, even if the facts are acknowledged when one of the Defendants uses a ticket, the fact that other Defendants gather around the Defendant using the ticket is recognized, since it cannot be recognized that other Defendants separately expressed their intent in order to externally deliver their intentions, such as going out relief or distributing the leaflet, etc., the essence of one-person demonstration is not harmed (see Seoul Central District Court Decision 2002Na60701, May 21, 2003).

(4) In addition, the demonstration subject to the report under the Assembly and Demonstration Act should be “an act affecting the opinions of many unspecified persons or under pressure.” In this case, considering the fact that the place of the Defendants’ one-person demonstration was limited to Samsung-I’s emotional sentiments and the content of the PPet cited in the order of the Defendants is the content of urging the Defendants to guarantee employment against SamsungSI, it is reasonable to deem that the other party who intends to deliver the Defendants’ own intent is not a large number of unspecified persons, but limited to the management of SamsungSI who can decide and implement the employment security of the Defendants. Therefore, in this regard, it cannot be viewed as a demonstration under the Assembly and Demonstration Act.

B. Whether the Defendants conspired or jointly held a demonstration

(1) Article 14 of the Assembly and Demonstration Act provides for the matters to be observed by the organizer and the participant in an assembly or demonstration, and provides for the matters to be observed by the participants in an assembly or demonstration under Article 16, thereby clearly distinguishing between the organizer and the participant in an assembly or demonstration. In the event of an assembly or demonstration not reported, the organizer shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding two million won (Article 19(2) of the Assembly and Demonstration Act).

(2) In the instant case, even if the Defendants’ act constitutes a demonstration under the Act, we examine whether the Defendants conspired to hold the reported demonstration in collusion or jointly.

(3) The so-called public offering for the so-called public offering is to ensure that two or more persons jointly engage in a specific criminal act, and they shift their own will to one another by using another's act. However, the decision of the public offering is not necessary to decide in detail the detailed date, time, place, contents, etc. of the mother, and it is revealed that the public offering has been made (see Supreme Court Decision 2006Do3631, Aug. 25, 2006, etc.).

However, in the case of an assembly or demonstration, it is naturally premised on the combination of two or more persons in terms of its concept, and it is unreasonable to regard all persons participating in an unreported outdoor assembly or demonstration as principal offender, i.e., organizer of an assembly or demonstration, which is against the principle of no punishment without law.

For example, even if there exists a large-scale relationship under which many people pursue common objectives as in the recent candlelight assembly, it can be sufficiently presented to hold an assembly in such a way as to determine the method of assembly (influence, creation of a relief system), time, completion period, appearance, etc. and to maintain the order of the assembly according to the voluntary will between the participants, not by the organizer, voluntarily gathered without the organizer, or not by the organizer, but by the organizer. In such a case, all participants cannot be considered as organizers.

(4) In the case of this case, although the prosecutor indicted the Defendants on the 17th failure to report, if each of the above acts of the Defendants is deemed to constitute a demonstration, it shall be deemed to be concurrent crimes under the former part of Article 37 of the Criminal Act where the date, time, place, and on-site participants are different. In the case of the Defendants, the Defendants shall not be jointly liable as the organizer regardless of whether they communicate with the intent, the degree of participation and awareness, and the degree of specific behavior.

(5) Therefore, even if each act of the Defendants constitutes a demonstration under the Act, each of the evidence submitted by the prosecutor alone cannot be held to the Defendants that jointly hosted 17 times a total of the 17 times demonstration as stated in the facts charged.

(c) Conclusion

Considering that an assembly and demonstration in a democratic state is not only a method for realizing the freedom of expression guaranteed by the Constitution, but also an effective and appropriate means for realizing a participatory democracy by disclosing a specific expression of intent to the State, the freedom of assembly and demonstration guaranteed by the Constitution is limited to the extent that it does not infringe on its essential elements under strict requirements, and should not be unreasonably restricted through the expanded interpretation of the Act.

Thus, each act of the Defendants does not constitute a demonstration under the Assembly and Demonstration Act, and even if it constitutes a family demonstration, the Defendants cannot be deemed to jointly hold the above demonstration.

5. Conclusion

Therefore, since each act of the defendants in this case is not a crime or a case where there is no proof of a crime, each act of the defendants in this case must be pronounced not guilty under Article 325 of the Criminal Procedure Act, and the summary of the judgment of not guilty against the defendants should be published under Article 58(2) of the Criminal Act.

For the purpose of transfer by judge