A. The meaning of the so-called "satisfy" that can be sentenced again to suspended sentence within the period of suspended sentence

(b) Whether the authority is responsible for holding an outdoor assembly without filing a report solely on the ground that the Defendant’s executive organization unfairly prohibits all indoor and indoor assemblies (affirmative)

A. The phrase “a person in whose case five years have not passed since the completion of, or exemption from, a sentence of imprisonment without prison labor or a heavier punishment” under the proviso of Article 62(1) of the Criminal Act refers to a person in whose case five years have not passed since the completion of, or exemption from, the execution of the sentence, but also to a case where the grace period has not passed since, the sentence was sentenced. However, if the suspended sentence becomes final and conclusive as a result of, a crime in concurrent crimes under Article 37 of the Criminal Act committed by a person was prosecuted before and after, and after, a separate procedure, one of the crimes committed by a person was tried before and after, and after, the suspended sentence became final and conclusive, it is unreasonable to say that it would be considerably difficult to sentence the suspended sentence again in the same procedure, compared with the case where the remaining crimes were adjudicated at the same time with the case where the suspended sentence was sentenced at the same time, and thus, the meaning of “a person who was sentenced” under the proviso of the same Article refers to a case where the sentence was rendered at the same time as an individual crime becomes final and conclusive at the same time.

B. In light of the fact that the Assembly and Demonstration Act requires a report to the chief of the competent police station on an outdoor assembly except for the assembly under Article 13, and that it provides that a notice of prohibition by the chief of the competent police station may exercise the right of assembly through filing an objection and administrative litigation, etc., it cannot be said that there is no possibility for the authority to expect a report on an outdoor assembly on the ground that the defendant unfairly prohibits all indoor and indoor assemblies to the national teachers, staff, trade unions, or other organizations whose executives are executives. Thus, it cannot be said that holding an outdoor assembly without filing a report to

(a) Article 62(1) of the Criminal Act; Articles 19(2) and 6(1) of the Assembly and Demonstration Act;

A. Supreme Court en banc Decision 87Do2365 delivered on September 12, 1989 (Gong1989, 1422) 88Do824 delivered on October 10, 1989 (Gong1989, 1708) 91Do473 delivered on May 10, 1991 (Gong191, 1680)

A

Defendant and Prosecutor

Attorney B

Seoul Criminal Court Decision 92No632 delivered on April 22, 1992

All appeals filed by the defendant and prosecutor are dismissed.

1. We examine the prosecutor’s grounds of appeal.

Article 62(1) proviso of the Criminal Act provides that "a person in whose case five years have not passed since the completion of, or exemption from, a sentence of imprisonment without prison labor or heavier punishment imposed upon him/her shall not refer only to a person in whose case five years have not passed since the completion of, or exemption from, the execution of the sentence, but also to a case where the grace period has not elapsed since, the suspension of the execution of a sentence imposed upon him/her: Provided, That where the suspended sentence was imposed upon one of the concurrent crimes under Article 37 of the Criminal Act committed by a certain person after being tried at a separate procedure and the sentence becomes final and conclusive as a result of, the suspended sentence was first imposed on one of the crimes committed before and after the judgment on the remaining crimes was rendered at the same time in the same procedure, it is unreasonable to say that the latter part of the above proviso provides that if it is clearly difficult to sentence the suspended sentence at the same time with the judgment on the remaining crimes, it shall not be deemed that the remaining crimes in which the suspended sentence becomes final and conclusive at the same time constitutes concurrent crimes under Article 37 of the same Act.

According to the records, on November 11, 1989, the defendant appealed to the Seoul District Criminal Court sentenced to a suspended sentence of two years for a crime of violation of the Assembly and Demonstration Act, which was sentenced to a suspended sentence of ten months on March 27, 199, and appealed again on August 14 of the same year, but the above judgment became final and conclusive after dismissal of the appeal on August 14 of the same year. Meanwhile, each of the crimes of subparagraphs 1, 2, and 3 in this case committed before the above judgment becomes final and conclusive after the first sentence of the crime of which judgment became final and conclusive, since the crimes of subparagraphs 1, 2, and 3 in this case committed before the above judgment becomes final and conclusive after the first sentence of the crime of which judgment became final and conclusive, the crimes of the final judgment and the latter part of Article 37 of the Criminal Act are concurrent crimes,

Ultimately, in the same purport, the court below's decision that sentenced the defendant to a suspended sentence as to the crimes Nos. 1, 2, and 3 of the first instance judgment of this case is just and there is no reason to criticize the measures of the court below as a

2. We examine the Defendant and his defense counsel’s grounds of appeal.

A. As to each violation of the rules of evidence and mistake of facts

In light of the records, the judgment of the court below is just and acceptable in light of the records, and there is no violation of the law such as the theory of lawsuit. The arguments are groundless.

B. According to the reasoning of the judgment below, as to the argument that there was no possibility of expectation of assembly report, the court below held that there is no possibility of expectation of assembly report on the part of the non-reported assembly participants as stated in Articles 1 and 4-a, 1, 3, and 13 of the facts constituting the crime in the judgment of the court of first instance, in light of the fact that the Assembly and Demonstration Act requires the chief of the competent police station to report on the outdoor assembly except the assembly under Article 13, and that the Assembly and Demonstration Act provides for the exercise of the right to assembly through an objection and administrative litigation, etc. against the prohibition of unfair notification by the chief of the competent police station, it cannot be said that there is no possibility of expectation of assembly report on the part of the defendant who is a executive officer, and therefore, it cannot be said that holding an outdoor assembly without reporting to the chief of the competent police station on the above ground that it is just and there is no error of law as to the theory of lawsuit.

C. We affirm the judgment of the court below that the assembly as stated in Paragraph (b) of Article 6 of the Assembly and Demonstration Act is an assembly requiring a report under Article 6 (1) of the Assembly and Demonstration Act as to the assertion that it is an assembly not subject to the report of assembly. It is just in light of the records and there is no error of law as pointed out.

D. According to the record as to the assertion that the Assembly and Demonstration Act is not applicable as an assembly for funeral rites, the issue at the paragraph (d) and (e) of Article 4 of the crime of the first instance which was found guilty by the court below is that an assembly accompanied by violence before and after the funeral ceremony constitutes an assembly prohibited under Article 5 (1) 2 of the Assembly and Demonstration Act, not an assembly for funeral rites of the High C military but an assembly for funeral ceremony, and such judgment of the court below is justified.

The issue is groundless.

E. As to the assertion of self-defense and resistance

The judgment of the court below that an act of violence, which was exercised in the course of each assembly and demonstration of the land register, did not constitute self-defense as it lacks legitimacy and legitimacy in the motive and purpose of the act of defense, is justified in the records, and the rejection of the defendant's assertion as to the right of resistance is also groundless.

F. Regarding the assertion that there was no criminal intent or conspiracy to commit an act of violence during the assembly, in light of the nature of each assembly of theories and the process of holding, preparation and progress of the assembly, and the degree of involvement of the defendant as the organizer of the assembly, etc., the judgment of the court below and the judgment of the court of first instance cited by the court below, which found the defendant guilty of this part of the facts charged is just and there is no error in the misapprehension of legal principles as otherwise alleged in the grounds of appeal.

In addition, since the Punishment of Violence, etc. Act aims to punish only scarcitys or organized violence crimes, it cannot be applied to violence having a political character like this case, it is only an independent opinion and it cannot be accepted. The arguments are groundless.

G. As to the assertion that the indictment is unlawful because it violates the principle of equity, the gist of the theory of the lawsuit is that the criminal facts pointed out are minor in the investigation process of other cases already punished by the defendant, and thus, it is unlawful to institute a public prosecution again in this case against the principle of equity. In light of the record, there is no evidence to deem that the prosecutor, who is the authority to institute a public prosecution, made any disposition or expression of intent that the above criminal facts are not at issue, and the above argument is groundless without any further determination.

3. Ultimately, the appeal by the Defendant and the prosecutor is without merit, and they are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)