Defendant

Defendant and Prosecutor

Round Round

Attorney Jeong-nam et al.

Seoul Central District Court Decision 2010Ma3517 Decided July 20, 201

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

Since the notice of prohibition of this case is illegal as abuse of discretionary power in the following point, the defendant's act of holding a prohibited assembly does not constitute a crime.

① An assembly reported first by the ○○○○○○ Seoul Council for the purpose of “the citizens’ order consciousness” is deemed to be in conflict with, or interference with, the instant assembly that was reported later, and its purpose. However, each of the above assemblies did not have any possibility of conflict between the venue of the assembly and the method of its proceeding.

② The first reported assembly was not likely to be held, and there was no need to protect the first reported assembly in that it was not held actually, but it constitutes a serious infringement on the freedom of assembly.

③ Article 40(2) and (3) of the Administrative Procedures Act provides that where a report that is not in conformity with the form requirements is filed, an administrative agency shall require the reporter to supplement the report within a reasonable period of time. Thus, the failure of the head of Seoul Southern Northern Police Station to give the defendant an opportunity to receive the withdrawal of the above meeting first reported to him/her violates the purpose of legislation of the Administrative Procedures Act and thus violates the minimum principle

④ The Defendant was unable to be notified of the result of the ruling on the objection against the instant prohibition notification, and was not guaranteed an opportunity to contest whether the ruling was lawful.

(b) Prosecutors;

The sentence of the lower court (2 million won of a fine) is too unhued and unreasonable.

2. Determination:

A. Judgment on the grounds for appeal by the defendant

Articles 6, 8, and 9 of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) require a person who intends to hold an outdoor assembly to submit a report to the head of the competent police authority, and the head of the competent police authority may notify the head of the competent police authority of the prohibition of the assembly to a subsequent assembly received if two or more reports overlap between the time and place of the assembly are filed for the same purpose, and if it is deemed that the objective of the assembly overlaps and two or more reports are in conflict or interfered with each other, and the organizer of the assembly can exercise his right through an objection, administrative litigation, etc. against the notification of the prohibition of assembly. In light of the above, even if the assembly of this case as alleged by the defendant is notified of the prohibition of assembly of this case, it is not recognized that the assembly of this case is in conflict or interfered with each other, or that there was no possibility of conflict between the above assemblies, or that there was no need to protect the first reported assembly of this case, since the notification of the prohibition of this case was revoked or received first, the defendant's act of holding the assembly of this case cannot be seen.

In addition, in light of the relevant provisions of the Administrative Procedures Act and the Assembly and Demonstration Act, there is no basis to deem that the head of the competent police authority who has received more than two reports of assemblies overlapping time and place has the duty to give the organizer of the assembly reported later an opportunity to receive a written withdrawal of the assembly reported earlier, and thus, even if the head of the competent police authority did not give such an opportunity and given a notice of prohibition, it cannot be deemed that the instant notice of prohibition was unlawful by abusing discretionary authority.

Furthermore, in light of the fact that Article 9 of the Assembly and Demonstration Act provides that if the organizer of an assembly who received the notification of prohibition raises an objection to the head of the immediately higher-level police office within 24 hours after receipt of the objection, the head of the police authority who received the objection shall make a ruling, and in such a case, if the person fails to send a written ruling within 24 hours after receipt of the objection, the notification of prohibition shall retroactively lose its validity, so long as the head of the immediately higher-level police office, who received the objection, dispatch a written ruling within 24 hours after receipt of the objection, even if the organizer was not notified of the result of the decision, it cannot be deemed that the notification of prohibition

According to the evidence duly adopted and examined by the court below, the defendant submitted a written objection to the notice of prohibition of this case to the head of the above superior police station of the Seoul Southernnam Police Station on June 26, 2009 through the Nonindicted Party on or around 17:20, and the Seoul Local Police Agency rendered a ruling of dismissal on June 27, 2009 and sent it by registered mail at around 10:59 on the same day. Thus, even if the defendant was not notified of the result of the above ruling, the notice of prohibition of this case cannot be deemed unlawful or invalid.

Therefore, the defendant's ground of appeal is without merit.

B. Determination on the prosecutor's grounds for appeal

Considering the following circumstances, considering the Defendant’s age, character and conduct, intelligence and environment, the motive, means and consequence of the instant crime, and the circumstances subsequent to the instant crime, etc., even if the Prosecutor considered the circumstances constituting the grounds for appeal as the grounds for appeal, the lower court’s punishment is too uneasible and unreasonable.

Therefore, the prosecutor's ground of appeal is without merit.

3. Conclusion

Therefore, since all appeals filed by the defendant and the prosecutor are without merit, they are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Chang-sik (Presiding Judge)