In the event that an assembly is first reported under the Assembly and Demonstration Act but it is not possible to give notice of prohibiting the assembly itself after the report is made, and whether the act of holding an assembly in violation of the notice of prohibition can be punished for violation of the same Act (negative)

If the report of an assembly conflicts with one another, the head of the competent police authority may give notice of prohibition to the assembly reported after the order of report under Article 8(2) of the Assembly and Demonstration Act (hereinafter “Act”). However, if it is objectively apparent that the first reported assembly is possible to hold the first reported assembly, such as the number of participants in the assembly, the purpose of the assembly, the place and time of the assembly, the number of assemblies reported by the reporter, the rate of assemblies actually held, etc., and the first reported by the reporter, and if it is objectively obvious that the first reported assembly constitutes a false or the first reported assembly in order to prevent the holding of other assemblies, the head of the competent police authority shall not give notice of prohibition to the assembly itself only on the ground that the first reported assembly was reported, and even if the person held the assembly in violation of such prohibition notice, such act does not constitute a violation of notification of prohibition under the Act.

Articles 8(1) and (2), and 22(2) of the Assembly and Demonstration Act

Defendant

Defendant

Attorney Jeong-nam et al.

Seoul Central District Court Decision 2011No2748 Decided September 29, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Article 8(2) of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) provides that “The head of the competent police authority may notify a person who hosts an assembly or demonstration which has been notified of the prohibition pursuant to Article 8(2) of the Assembly and Demonstration Act of the prohibition of an assembly or demonstration, in cases where two or more reports overlap in time and place of the assembly or demonstration, and where it is deemed that the objectives of the reports are contrary to, or interfered with, one another in view of the two or more reports.” Article 22(2) of the Assembly and Demonstration Act provides that “The head of the competent police authority shall punish a person who hosts an assembly

Therefore, unless there are special circumstances, the head of the competent police authority may give notice of prohibition to the assembly reported later in accordance with the order of report under Article 8(2) of the Assembly and Demonstration Act. However, if it appears objectively clear that the first reported assembly falls under a false or most reported assembly in order to prevent the holding of other assemblies after ascertaining all the circumstances, such as the number of participants in the assembly reported earlier, the purpose of the assembly, the place and time of the assembly, the number of assemblies reported by the reporter, the actual possibility of holding the first reported assembly, and the possibility of interference with the assembly, etc., and the first reported assembly, and if the first reported assembly falls under a false or most report to prevent the holding of other assemblies, the head of the competent police authority shall not give notice of prohibiting the assembly itself on the ground that the first reported assembly was reported first, unless there is a reason for prohibition of assembly. Even if the head of the competent police authority held a meeting in violation of the prohibition notice, such act shall not be deemed as a violation of the prohibition notice under the Assembly and Demonstration Act.

2. The court below found the Defendant guilty of the facts charged on the ground that the notice of prohibition on the assembly of this case, which was reported later on the grounds of the competition of assemblies, is lawful and valid even if it is unlawful for domestic affairs, and thus, the Defendant’s holding of a meeting in violation of the prohibition notice constitutes a violation of Article 22(2) of the Assembly

However, such determination by the court below is difficult to accept for the following reasons.

If the notification of prohibition is revoked or the notification of the assembly is not withdrawn, if the notification of prohibition itself is unlawful, it shall not be deemed illegal to hold the assembly in violation of this notification.

According to the records in this case, the first report of the defendant was filed with the following facts: "Name of assembly: Basic order key movement and development campaign for the new Seoul street clean movement", "for the purpose of holding: Civil order opening: Opening to sunrise on June 27, 2009", "Opening place: Seoul square, viewing and listening after viewing, and subway viewing station 4", "Vers: ○○○○○ Seoul Consultative Council", and "at least 1,000 persons scheduled to participate: ○○○○○○○ Consultative Council", and "at least 1,000 persons scheduled to participate". The fact that the ○○○○○○○○○ Consultative Council reported that it would hold a total of eight meetings as the same contents only on June 209, but did not actually hold a meeting once.

In light of the above legal principles, first of all, there is considerable doubt as to whether more than 1,00 persons participated in the meeting in light of the purpose of the first reported meeting and whether it was necessary to continue the meeting from the time to after sunset from the time of sunrise to the time of sunrise. In particular, since ○○○○○○ Seoul Council reported eight times on June 2009, but actually did not hold a meeting one time, it is highly likely that the reported meeting first constitutes a false or most reported meeting to prevent the holding of another meeting. If there is a circumstance, the chief of the competent police station should first confirm whether the person who reported the meeting was the actual possibility of holding the meeting, and whether the reported meeting was the false or most reported meeting to prevent the holding of another meeting, but it should not be concluded that the notification of prohibition against the meeting of this case was unlawful, and even if the defendant violated the prohibition of holding the meeting, it should not be concluded that the Defendant violated the prohibition of holding the meeting of this case.

Therefore, the court below should have deliberated closely on whether the assembly reported earlier than the defendant constitutes a false or most assembly report to prevent another assembly, and whether the notification of prohibition by the chief of the competent South Korea Police Station is legitimate, and should have judged whether the defendant's act constitutes a holding of assembly in violation of the prohibition notice under the Assembly and Demonstration Act. However, without doing so, the court below found the defendant guilty of the facts charged in this case only for the reasons stated in its reasoning. In so doing, the court below erred by misapprehending the legal principles on the holding of assembly in violation of the prohibition notice under the Assembly and Demonstration Act, which

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court 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 Park Poe-young (Presiding Justice)