2017Do10024 General traffic obstruction

A

Defendant

Law Firm Jin, Law Firm

Attorney Park Il-young, Park Young-young, Park Tae-young, Kim Tae-kak, Park Jong-kak, Park Jong-kak, Park Jong-kak

50,00,00,00

Sautia, Kang Young-gu, Lee Jong-hee, Cho Jong-ju, Cho Jae-ju, Lee Ho-young, Lee Jong-young,

Mamins, Kim Jong-si, Lee Jong-Jin, Kim Jong-Jak, Park Jong-Jak, Kim Jong-Un

Suwon District Court Decision 2016No6770 Decided June 9, 2017

January 10, 2019

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

The grounds of appeal are examined.

1. In light of Article 6(1) of the Assembly and Demonstration Act and the legislative purport thereof, where an assembly or demonstration is conducted on the road after completing lawful reports under the Assembly and Demonstration Act, the traffic of the road may be restricted to a certain extent. Therefore, in a case where the assembly or demonstration conducted within the reported scope or conducted differently from the reported contents, barring special circumstances, it does not constitute a general traffic obstruction under Article 185 of the Criminal Act even if the assembly or demonstration was obstructed thereby, barring special circumstances. However, in a case where the assembly or demonstration considerably deviates from the original reported scope, or makes it impossible or considerably difficult to pass by interfering with traffic due to serious violation of the conditions under Article 12 of the Assembly and Demonstration Act (see, e.g., Supreme Court Decision 2006Do755, Nov. 13, 2008).

However, since the scope of the initial report is considerably deviating from the scope of the report, or the participation in an assembly and demonstration that make it impossible or considerably difficult to pass by interfering with road traffic by seriously violating the conditions under Article 12 of the Assembly and Demonstration Act, all such participants do not necessarily constitute a crime of interference with general traffic, as a matter of course, by all the participants. In fact, if the participants engaged in a direct act that causes interference with traffic by taking part in a significant deviation from the reported scope or a serious violation of the said conditions, or if not, the participants may be held liable for the crime as a co-principal in light of the developments leading up to the participation or the degree of involvement by the participants (see, e.g., Supreme Court Decision 2016Do4921, Nov. 10, 2016).

2. A. The summary of the facts charged in the instant case is as follows: (a) the Defendant, the chief of the TRU U branch’s organization under the organization B, participated in the J assembly held on November 14, 2015 in Seoul, etc. on the part of Seoul on November 14, 2015, starting from N around 15:30 with the demonstration team, starting from 16:10 with the demonstration team, in collusion with the participants in the manner of occupying and driving the R car up to the R wall at around 16:10.

B. On the basis of the circumstances stated in its reasoning, the court below affirmed the judgment of the court of first instance which recognized the defendant's crime of obstruction of general traffic by recognizing that the defendant can be punished as a co-principal, on the ground that the defendant's direct act of causing interference with traffic by significantly deviating from the scope of the report with the participants in the assembly, or committed a direct act of causing interference with traffic by letting other participants in other assemblies participate in the assembly in order, implied intent, and considerably deviating from the reported scope by occupying the lanes prior to W.

3. A. However, examining the following facts and circumstances revealed through the reasoning of the lower judgment and the record in light of the legal principles as seen earlier, the Defendant cannot be deemed to have committed a direct act that may cause traffic obstruction or to be held liable as a co-principal of general traffic obstruction by significantly deviating from the reported scope or seriously violating the conditions. Therefore, the lower court’s aforementioned determination is difficult to accept.

(1) On November 12, 2015, in relation to E and J, the Seoul Local Police Agency reported on November 14, 2015 that the entity “N-AL-AM-N-AO” will be performed using the entire delivery from November 14, 2015 to 20:00, but the Seoul Local Police Agency notified the entity to prohibit the foregoing progress.

(2) However, although the defendant is a head of U-Chapter 2 division, there is no evidence to deem that the defendant was aware in advance of the reported scope and conditions of the assembly and demonstration, or that he continued the demonstration with recognizing its illegality.

(3) From 15:30 on the day of the assembly, the Defendant began running along with members of the Sungsung branch. At this time, the police already installed a wall and was in the situation of blocking and controlling the daily traffic.

(4) The Defendant appears to have participated simply in the instant assembly and demonstration, and there is no circumstance to deem that there was a direct act that may cause traffic obstruction by performing a leading role in the assembly and demonstration, or that there was a functional control over the act through an essential contribution to it.

B. Nevertheless, the lower court erred by exceeding the bounds of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine of general traffic obstruction and joint principal offenders, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee

Justices Park Sang-ok

Justices Cho Jae-sik in charge