2014No866 A. Injury resulting from special obstruction of performance of official duties

(b) General traffic obstruction;

(c) Interference with business;

(d) Performance of official duties;

(e) Violation of the Punishment of Violences, etc. Act;

(f) Violation of the Assembly and Demonstration Act;

1. (a) b. (c) d. f. A;

2.(e)(f) B

3.(a)(e)(f) C

Defendants and Prosecutor (Defendants)

Route germs, Kim Sung-dong (Public Prosecution), Kim Jong-chul (Public trial)

D Law Firm (For the Defendant)

Attorney E (for the defendant A)

Attorney F (for the defendant A)

Law Firm G (for Defendant B)

Attorney H (for the defendant C)

Busan District Court Decision 201Da813, 814 (Consolidated) Decided December 2, 2014

June 11, 2015

1. The judgment of the court below reversed the guilty portion against Defendant A.

Defendant A shall be punished by imprisonment with prison labor for two years.

However, the execution of the above sentence against Defendant A shall be suspended for three years from the date this judgment becomes final and conclusive.

2. All appeals filed by Defendant B and C and the Prosecutor against the Defendants are dismissed.

1. Scope of adjudication of this court;

Of the facts charged in the instant case, the lower court dismissed each of the charges against the Defendants on the violation of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) due to the nighttime Demonstration (Defendant A, C) and the participation (Defendant B) on July 9, 2011, and acquitted each of the remaining facts charged against the Defendants, respectively.

As to each conviction of the lower judgment, the Defendants appealed from each of the remaining convictions and innocences except the dismissed part of the prosecution, and thus, each of the above public prosecution parts against the Defendants was excluded from the object of attack and defense between the parties, and there is no other matter to be deliberated ex officio.

Therefore, the scope of the judgment of this court shall be limited to each of the defendants' convictions and innocences among the judgment below, and each of the above dismissed parts shall be subject to the conclusion of the judgment below and shall not be judged again

2. Summary of grounds for appeal;

A. Defendant 1)

1) misunderstanding of facts or misapprehension of legal principles

A) Joint assertion by the Defendants

(1) Regarding the point of each general traffic obstruction of June 12, 201 (the first desired bus) and July 9, 201 (the second desired bus)

It was true that the Defendants driven along the roads as stated in each part of the facts charged, but at the time of the first and second desired bus, the participants are under the guard of the police, and they proceeded with the delivery and some of the roads using the roads, and some of the roads were possible to pass by the vehicle. Therefore, it cannot be deemed that the passage of the vehicle was impossible or considerably difficult due to the demonstration or passage.

In addition, since the participants of the demonstration, including the defendants, use only part of the road and move according to the direction of the police, this is within the scope of assembly and demonstration guaranteed by the Constitution, and it is a justifiable act that does not go against the social rules and is not unlawful.

Nevertheless, the court below found the Defendant guilty of this part of the charges on the grounds as stated in its holding. The court below erred by misapprehending the legal principles as to mistake of facts or tolerance of general traffic obstruction, thereby adversely affecting the conclusion of the judgment.

(2) As to each violation of the Punishment of Violences, etc. Act (joint residence intrusion) due to the intrusion of any Youngdo Shipbuilding (First Desired Bus) dated June 12, 201

The Youngdo Shipbuilding is divided into a protection zone and a non-protection zone, and the primary bus participants in the first round of Defendant A, who entered the Youngdo Shipbuilding, fall under the front of the old-gu old-age station and the bottom of the 85 crails, which had been staying in the Youngdo Shipbuilding, and therefore, the Defendants entered the Youngdo Shipbuilding with the concern of the safety of J in the Youngdo vessel.

Defendant B entered the Youngdo Shipbuilding without any conflict with the help of labor union members in order to deliver 'J located in Youngdo Shipbuilding' on the date and time stated in this part of the facts charged. As such, Defendant B did not have the intention of entering his residence to Defendant B.

Defendant C’s entry into the field of a field, but Defendant C’s entry into the field after the passage of the participants and the entry of the field-based shipbuilding station after the arrival of the participants, and there is no person to restrain the entry into the field-based shipbuilding station. Therefore, it cannot be viewed as a residential intrusion.

Nevertheless, the court below found the Defendants guilty of this part of the charges on the grounds of the same circumstances as the ruling, after premised on the Youngdo Shipbuilding as the "National Security Facility A". Thus, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

(3) Regarding the violation of each Act and Demonstration Act due to the dispersion order or non-compliance with the second desired bus on July 9, 2011

Since the Constitutional Court's decision on the prohibition of outdoor demonstration before 24:00 as unconstitutional, the previous dispersion warning and the request or order for voluntary dispersion is null and void, and the outdoor demonstration before and after the absolute sunset is not subject to Article 6 (1) of the Assembly and Demonstration Act (report), and it is also unreasonable to issue an order of dispersion on the ground of incompetence. In addition, the order of dispersion on the demonstration after 24:00 may be issued only in cases where the demonstration leads to a clear and direct danger to the public peace and order or the peace of citizens, and there is no circumstance to deem that the above requirements of the order of dispersion have been met on the date stated in the facts charged.

Although the police at the time of the second desired bus does not coincide with the fact that it was requested for voluntary dispersion and the reason for dissolution as stated in the facts charged, and the prosecutor institutes a public prosecution as to this part under Article 24 subparag. 5, Article 20(2), Article 23 subparag. 3, and Article 10 of the Assembly and Demonstration Act, the court below, without any modification of an indictment, acknowledged that the Defendants failed to comply with the order of dispersion by the police, on the premise that the Defendants did not violate Article 6(1) of the Assembly and Demonstration Act without any modification of an indictment, and based on Article 24 subparag. 5, Article 20(2) and Article 20(1)2 of the Assembly and Demonstration Act, this part of the facts charged is contrary to the principle of no accusation.

Nevertheless, the lower court found the Defendant guilty of this part of the prosecution based on the circumstances indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine as to the order of dissolution or by misapprehending the legal doctrine regarding the order of dissolution

B) Defendant A’s assertion of mistake or misapprehension of legal principles

(1) Regarding the violation of the Assembly and Demonstration Act by June 12, 201 (the first desired bus) and July 9, 201 (the second desired bus)

Although the defendant is a person who proposed a desired bus for the first time, since the gathering and demonstration of a desired bus was conducted by the voluntary solidarity of the citizens, the defendant is only a simple participant of the assembly and demonstration of the first and second desired bus, not the organizer.

Nevertheless, the lower court acknowledged Defendant 1 as the organizer of an assembly or demonstration at the time of the first and second desired bus and found Defendant guilty of each part of the charges. In so doing, the lower court erred by misapprehending the legal doctrine on the organizer of an assembly or demonstration under the Act, or by misapprehending the legal doctrine on the organizer of an assembly or demonstration under the Act, thereby adversely affecting the conclusion of the judgment

(2) On July 9, 201 (the second desired bus) concerning the injury resulting from the obstruction of special performance of official duties

The Defendant was unaware of the fact that many participants in the demonstration, including K, did not know of the fact that he inflicted injury on the police by multiple force, and such act was an accident, and thus, it cannot be recognized that the Defendant had functional control over the Defendant as an accomplice, and otherwise, it is difficult to deem that the Defendant conspired to commit the crime causing obstruction of the performance of special duties, or that there was a possibility of predictability for such act.

Nevertheless, the lower court found the Defendant guilty of this part of the prosecution on the grounds of its stated reasoning. In so doing, the lower court erred by misapprehending the legal doctrine or by misapprehending the legal doctrine, thereby affecting the conclusion

(3) On October 8, 2010, concerning the obstruction of performance of official duties

In the course of protesting against the defect of unilaterally arresting the police demonstration team, only the fact that the police temporarily takes the hand of the police, and there is no fact that the police did not carry the bage of the police officer.

Nevertheless, the court below found the defendant guilty of this part of the prosecution based on the circumstances stated in its holding. The court below erred by misunderstanding the facts and affecting the conclusion of the judgment.

C) Defendant B’s assertion of misunderstanding of facts or misapprehension of legal principles

Although the defendant is merely a simple participant of the desired bus 1 and 2, the prosecutor indicted the defendant on the ground that the head of the Tong joining the desired bus is the name of the defendant, unlike other simple participants, and such indictment by the prosecutor has abused the right of prosecution.

D) Defendant C’s assertion of misunderstanding of facts or misapprehension of legal principles (related to the violation of the Assembly and Demonstration Act due to failure to comply with the order issued by July 31, 201 (the third desired bus))

Although the Defendant did not hear a dispersion order on the date and time stated in this part of the facts charged, the lower court rendered a judgment of conviction as to this part of the facts charged, based on its stated reasoning. In so doing, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

In light of the various sentencing conditions of the instant case, the sentence (2 years of imprisonment with prison labor for the Defendants A / Defendant B: fine of KRW 3 million / Defendant C: fine of KRW 5 million) declared by the lower court is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts or misunderstanding of legal principles (as to each not guilty portion in the original judgment)

A) Regarding the violation of the Assembly and Demonstration Act on June 12, 201 (common assertion against the accused)

In light of the fact that not only the phrase of the voluntary dispersion but also the situation at the time of the voluntary dispersion, the method and time between the notification, etc., it is reasonable to determine whether the voluntary dispersion was requested, and that if there was an order of dispersion around June 11, 201, it is reasonable to 22:46 and 22:50 on June 11, 201, the subsequent measures shall be deemed that the order of dispersion was issued. In light of the fact that L, who was in charge of broadcasting the order of dispersion, stated that “the broadcast content at the time of the lower court stated

Nevertheless, the lower court rendered a not guilty verdict on each part of the charges against Defendant 1 on the ground that there was no legitimate dispersion order at the time of the first desired bus. In so doing, the lower court erred by misapprehending the facts or misapprehending the legal doctrine on dispersion order under the Act, thereby adversely affecting the conclusion of the judgment.

B) As to Defendant A

In full view of the fact that the organizer of the 3, 4, and 5 desired bus is also a desired bus flag, as well as the 1, 2, and 30 desired bus, and that the defendant was involved in the planning of the 3, 4, and 5 desired bus, taking into account the following: (a) the fact that the defendant directly posted the materials of the conference of the planning group for desired bus proposals on the Internet; (b) the defendant was a member of the planning group who led the defendant to prepare; (c) the result of the communications investigation by the defendant sent group text messages to his members of the planning group; and (d) the defendant directly uses the

Nevertheless, the lower court rendered a not-guilty verdict on each of the charges on the grounds that there is no evidence supporting the Defendant as the organizer of an assembly or demonstration of desired buses 3, 4, and 5. In so doing, the lower court erred by misapprehending the legal doctrine on facts or by misapprehending the legal doctrine, thereby affecting the conclusion

C) As to Defendant C

It is recognized that Defendant C was involved in planning a desired bus in full view of the following: (a) the Defendant posted the data on the Internet directly; (b) the Defendant was a member of the Planning Group who was present at the Planning Group meeting; (c) the Defendant was given a statement to the effect that he was present at the Planning Group; (d) the Defendant also received text messages from the group that he sent to the members of the Planning Group;

Nevertheless, under the premise that Defendant C was not involved in the planning of a desired bus, the lower court rendered a not-guilty verdict on all the charges of violating the Act due to the non-reported assembly and night demonstration, general traffic obstruction, and injury caused by special obstruction of performance of duties, on the premise that Defendant C was not involved in the planning of a desired bus. In so doing, the lower court erred by misapprehending the legal doctrine or adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

In light of the various sentencing conditions in the instant case, the above sentence imposed by the lower court to the Defendants is unreasonable.

3. Judgment on the misunderstanding of facts or misapprehension of legal principles by the Defendants

A. Common master of the Defendants

1) As to the assertion regarding interference with each general traffic of June 12, 201 (the first desired bus) and July 9, 201 (the second desired bus)

A) The judgment of the court below

The defendants argued to the purport of this part of the appeal as alleged in the grounds of appeal, and under the title of "the defendant's argument that there was no traffic obstruction," 1. Traffic obstruction, and 1. social norms," the court below found the defendants guilty of participating in the demonstration on the following grounds: (i) although the police is at the same time with the participants of the demonstration, it seems that the crime prevention is only for the purpose of the demonstration, but it does not allow the demonstration; (ii) the first and the second desired bus demonstration lacks legality as it is not reported; (iii) the participants were 700 persons (the first) or 7,000 persons (the second). The participants moved along the upper part of the road or the upper part of the lane of the road, and (iv) the passage of the participants of the demonstration is impossible for the participants of the demonstration to interfere with the traffic flow for a considerable length of time, or the participation in the demonstration cannot be seen as a violation of social rules under Article 28 of the Criminal Act.

B) The judgment of this Court

(1) Legal principles

The purpose of interference with general traffic under Article 185 of the Criminal Act is to punish all acts that make it impossible or considerably difficult to pass by causing damage to land, etc. or interference with traffic by other means (see, e.g., Supreme Court Decision 95Do1475, Sept. 15, 1995). Moreover, interference with general traffic is an abstract dangerous crime where traffic is impossible or considerably difficult, and the result of interference with traffic should not be practically generated (see, e.g., Supreme Court Decision 2004Do7545, Oct. 28, 2005). In addition, "act which does not violate social rules" under Article 20 of the Criminal Act refers to an act which can be acceptable in light of the overall spirit of legal order or social ethics or social norms behind it, and any act which constitutes legitimate or legitimate act, other than the aforementioned act as a legitimate act, or an act of violation of legal interests and interests of 204Da7545, Mar. 28, 2005.

(2) Determination

In light of the above legal principles, in full view of the evidence duly adopted and examined by the court below and the court below, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law by misunderstanding the facts or by misunderstanding the legal principles as alleged by the defendants.

In addition, in light of the aforementioned evidence, the defendants, including the defendants, committed an act that may be acceptable in light of the overall legal order, social ethics, intentional sentiment or social norms, namely, an act that is not a justifiable act that is not carried out by the social rules under Article 20 of the Criminal Act, by occupying the road along with many participants of the demonstration at the time of the instant case, thereby causing traffic obstruction. In addition, it cannot be deemed that the defendants occupied the road along with the number of participants of the demonstration at the time of the instant case, and it cannot be deemed that there was a substantial reason for causing traffic obstruction. Moreover, it cannot be said that there was an urgent reason for the defendants to carry out the above behavior at the time, or there was no other means or method.

Therefore, the Defendants’ ground of appeal on this part is groundless.

2) As to the assertion regarding the violation of the Punishment of Violence, etc. Act (joint residence intrusion) due to the intrusion of the Youngdo Steering Group on June 12, 2011 (the first desired bus)

A) The judgment of the court below

The Defendants argued to the purport that this part of the grounds of appeal was alleged in the lower court, and the lower court found the Defendants guilty on the grounds that the Defendants were against the will of the Defendants, other than the number of persons partially limited to take measures to lock-out as of February 14, 201, and that Jin Heavy Industries posted the notice, warning, and eviction order that no entry is allowed at the time of the company’s approval, and the Defendants controlled access through security services. ③ The reasons why the Defendants entered the Young Heavy Industries are for the purpose of attacking the Jin Heavy Industries’s 85 colon in the Yong Heavy Heavy Industries, as opposed to the layoff of the Young Heavy Industries, and ④ the Defendants were aware that the Defendants’ act was against the will of the Defendant, i.e., the victim’s awareness of the small portion of the facts charged.

B) The judgment of this Court

In light of the following circumstances as seen earlier, the court below duly adopted and investigated by the court below, i.e., Hanjin Heavy Industries, which was conducted a lock-out on February 14, 201 for members of the Korean Metal Workers' Support Branch, Hanjin Heavy Industries Group, participating in the strike in response to layoff, and for third parties. The Defendants opposed to the layoff of Hanjin Heavy Industries, and were into the Youngjin Heavy Industries in order to attract the J which was occupied by the 85 Creinant in Youngdo, the above acts of the Defendants may be deemed to be against the will of Hanjin Heavy Industries, which is the manager of the Joseon Heavy Industries, and the fact-finding of the defendants' act is established as a defense industry industry, i.e., Hanjin Heavy Industries, which is located at 5 U.S. Youngdongdong-gu, Busan, and as a whole, constituted a crime of invasion against the nation's own residential security provision, and as long as the defendants asserted that it constitutes a crime of invasion against the nation's own residential security.

Therefore, the Defendants’ assertion of this part of the grounds for appeal is without merit.

3) As to the assertion regarding the violation of each Act and subordinate statute due to the dispersion order and non-compliance with the second desired bus on July 9, 2011

A) The judgment of the court below

The Defendants argued to the purport that this part of the grounds for appeal was discussed in the lower court, and the lower court determined that the Defendants’ act of participating in the demonstration after the departure of Busan constitutes general traffic obstruction, ⑤ the number of participants of the demonstration after the departure of Busan Station, the mode of traffic obstruction, the frequency of the demonstration resulting from the order, and the degree of danger of interference with public safety and order after the departure of Busan Station from July 9, 201 to 15:30 of the following day, and the Defendants were guilty on the following grounds:

B) The judgment of this Court

(1) Legal principles

Article 20(1)2 of the Assembly and Demonstration Act provides that an outdoor assembly or demonstration subject to a dispersion order and does not provide for separate dispersion requirements, even if the outdoor assembly or demonstration leads to a clear risk of direct danger to others’ legal interests or public peace and order, it shall be deemed that the order of dissolution may be issued pursuant to the above provision, and only if the order of dispersion meeting such requirements is not complied with, it may be punished pursuant to Article 24 subparag. 5 of the Assembly and Demonstration Act (see Supreme Court en banc Decision 2010Do6388, Apr. 19, 2012).

(2) Determination

Upon examining the judgment of the court below in light of the above legal principles, the court below's determination is consistent with the records, and the order of dissolution of the police against the second desired bus demonstration is legitimate, and therefore, the court below's above fact-finding and judgment are just, and there is no error of law by misunderstanding the facts or by misunderstanding the legal principles as argued by the defendants.

Therefore, this part of the defendants' ground for appeal is without merit.

【Additional Judgment Matters】

○ With respect to the right of dissolution order, non-existence

As pointed out by the Defendants, the part concerning a demonstration in the main sentence of Article 10 of the Assembly and Demonstration Act as of March 27, 2014 and the main sentence of Article 10 among the main sentence of Article 23 subparag. 3 of the Assembly and Demonstration Act, which is contrary to the Constitution, as long as they apply to a demonstration from the start of each year to the start of 24th day (the Constitutional Court Order 2010Hun-Ga2 and 2012Hun-Ga13 (merged)) was decided upon. However, as to Article 22(2) and Article 6(1) of the Assembly and Demonstration Act which punish the acts of holding an outdoor assembly or demonstration at the start of each time, it is still valid without being sentenced to the unconstitutionality or unconstitutionality of the Constitution (see Supreme Court Decision 2010Do10769, Oct. 15, 2014). In light of the foregoing, the lower court and the evidence duly adopted by the first instance court, it is clear that the Defendants’s assembly or demonstration constitutes a legitimate assembly and demonstration.

○ Violation of the principle of non-defluence

If there is no concern about actual disadvantage to the defendant's exercise of his/her right to defense, it does not violate the principle of no accusation even if the court acknowledged facts different from the facts charged without going through the amendment of a bill of indictment to the same extent (see Supreme Court Decision 2011Do1651, Jun. 30, 201; Supreme Court Decision 2013Do16367, Jul. 24, 2014). As to this part of the facts charged, even though the prosecutor does not explicitly state the grounds for dispersion at the time of prosecution, and there are some differences between the law applied by the prosecutor at the time of prosecution and the applicable law applied by the court below and the facts charged by the prosecutor at the time of the prosecution, following the cancellation of the prosecution on this part of the facts charged by the defendant through the amendment of a bill of indictment, it is merely merely clear and abstract the relationship and applicable law to this part of the facts, and thereby, it cannot be said that there is any substantial disadvantage to the defendant's right to defense.

B. Defendant A

1) As to the assertion related to the violation of the Assembly and Demonstration Act by June 12, 2011 (the first desired bus) and July 9, 2011 (the second desired bus)

A) The judgment of the court below

The court below also argued to the purport that this part of the grounds for appeal was alleged, and under the title of "the defendant's argument that it is not the organizer of an assembly or demonstration", the court below decided that the defendant's active participation in the above assembly and demonstration is the first proposer who held an assembly to support the human beingJ in the deaf nature by moving the cream in the Yeongdeungpo Heavy Industries against the reorganization dismissal of the Hanjin Heavy Industries, and that the defendant was the first proposer who held an assembly to directly participate in the assembly and demonstration, ② the defendant was able to organize the assembly plan by participating in the assembly and demonstration plan, such as holding a meeting for the costs of an assembly, and decided that the defendant was able to use B's account in order to prepare the expenses for the assembly and demonstration, and requested B to collect considerable amount of money from the participants in the meeting, ③ the defendant publicizeds the above assembly and demonstration and recommended him to participate in the assembly and demonstration by using text messages, ④ the defendant's desire to directly participate in the assembly and demonstration and rejected the defendant's desire to directly participate in the assembly and demonstration.

B) The judgment of this Court

The organizer refers to a person or organization holding an assembly or demonstration under his/her own responsibility under Article 6 (1) of the Assembly and Demonstration Act, and the organizer of an assembly or demonstration that requires a prior report pursuant to Article 6 (1) of the Assembly and Demonstration Act refers to a person who holds or leads an assembly or demonstration, or a person who plans and forms an assembly or demonstration and moves to its implementation (see Supreme Court Decision 2009Do2821, Sept. 29, 201). In light of the above legal principles, in light of the evidence duly adopted by the court below and the trial, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of misapprehending the legal principles as alleged by the defendant.

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

2) As to the assertion regarding the injury resulting from the obstruction of performance of special duties on July 9, 201 (the second desired bus)

A) The judgment of the court below

In full view of the following circumstances acknowledged by the evidence, the lower court rejected the Defendant’s assertion on the ground that it did not constitute a crime of bodily injury resulting from obstruction of performance of official duties due to the conspiracy of Defendant India, and found the Defendant guilty of this part of the facts charged.

- Summary of the circumstances described in the holding of the court below

The following circumstances acknowledged by the evidence: (a) even if the J, like the first desired bus, was the main purpose of holding the second desired bus assembly under the order of 85 colons in Yong-do; (b) large-scale participants at the time of the first desired bus assembly enter the Youngdo Factory, which is a national security facility, by using violent methods by blocking the police in the heart at the time of the assembly; and (c) more than 10 times the size of the participants of the second desired bus assembly as unreported at night than the first desired bus at the time of the assembly, and more than 7,000 participants of the demonstration, it is anticipated that there was no possibility that the Defendant would directly interfere with the operation of the demonstration; and (d) as a result, the Defendant, as the organizer of the assembly, could not have been urged by the police participants of the demonstration, could have been sufficiently aware of the possibility that it would have been committed by the participants of the demonstration, such as the use of the demonstration by force; and (e) the Defendant, as the police participants of the assembly, could not have been able to the participants of the demonstration.

B) The judgment of this Court

(1) Legal principles

Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements that constitute a crime through functional control over one’s own will. As such, even if part of the conspiracys do not directly bear part of the constituent elements of the crime, their role or control or influence over the progress of the crime, if it is recognized that there exists a functional control over the crime through essential contribution, rather than mere conspiracys, the so-called crime cannot be exempt from punishment as a principal offender (see, e.g., Supreme Court en banc Decision 98Do321, May 21, 1998; 202Do995, Jun. 24, 2004; 2002Do512, Mar. 11, 2005; 206Do3266, Jun. 26, 2006).

(2) Determination

In light of the above legal principles, the above circumstances are as follows, which can be acknowledged by comprehensively considering the evidence duly examined and adopted by the court below, i.e., the defendant took a position to sufficiently see the conflict between police officers and some participants of the demonstration at the time of the demonstration, and as seen earlier, the defendant took a speech inciting the participants of the demonstration with the purport that even if a physical force has been mobilized, the police officer and some participants of the demonstration should see the possibility of a conflict, and the purpose and size of the second desired bus, the role of the victim, the role of the victim, and the progress of the second desired bus which were violently deteriorated, the victim could have sufficiently predicted the possibility of the occurrence of violence as stated in the facts charged, and even if the defendant did not exercise direct violence, it is sufficient to view that there was an implicit contact with the participants of the demonstration, and therefore, it is not reasonable to misunderstanding the legal principles as seen in the above.

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

3) As to the assertion on the obstruction of performance of official duties by October 8, 2010

The Defendant argued to the effect that this part of the grounds of appeal was alleged in the lower court, and the lower court, on the contrary, found the Defendant guilty of this part of the facts charged on the ground that the Defendant’s assertion was dismissed on the ground that it obstructed N’s investigation by exercising the force of force, such as: (a) the Defendant’s specific statement at N’s investigative agency and court; and (b) the photograph pictures containing the figures of N at the time of the instant case, including the Defendant and N’s photographic images, etc., on the ground that it interferes with N’s investigation by resisting the police’s attitude; and (c) the lower court convicted the Defendant of this part of the facts charged.

In light of the following circumstances that can be recognized by comprehensively taking into account the evidence duly adopted and examined by the court below, i.e., (i) N was strongly attached to arms at an investigative agency and court of the court below; (ii) N was unable to arrest by exercising serious physical force to the extent that it is impossible to move the witness (N); and (iii) he stated to the effect that he was able to carry his arms and flabs from the defendant as "I could not arrest by taking advantage of serious physical force to the extent that he could not move," and (iv) even with photographic images, he could check the appearance of the defendant’s arms and flabs by taking advantage of the fact that the court below’s above fact-finding and judgment can be justified as it is, and there is no error of law that misleads the defendant as alleged by the defendant.

Therefore, the defendant's argument on this part of the appeal is without merit.

C. Defendant B

In a case where it is deemed that a prosecutor voluntarily exercised his/her right to institute a public prosecution and gives substantial disadvantage to the defendant, such act may be deemed as abuse of the right to institute a public prosecution and the validity of the institution of public prosecution may be denied (see, e.g., Supreme Court Decision 2004Do482, Apr. 27, 2004).

However, according to the evidence duly adopted by the court below and the court below, the defendant not only received the cost of participating in the rare bus in the account in the name of the defendant, but also appears to have exercised considerable influence in the process of the desired bus demonstration. The traffic of the road at the time of the defendant's participation in the first and second desired bus demonstration was considerably obstructed and the damage to the general public was not significant. Thus, it is difficult to recognize that the public prosecution of this case, which held the defendant responsible for the defendant's act, was significantly deviating from the right of prosecution discretion, and it is difficult to find any other circumstances to acknowledge this differently.

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

D. Violation of the Assembly and Demonstration Act due to Defendant C’s dispersion order or non-compliance with the order issued on July 31, 2011 (the third desired bus)

for the purposes of this section)

In light of the following circumstances, the Defendant argued to the purport that this part of the grounds of appeal were alleged in the lower court, and the lower court, on the ground that, under the title of the “Defendant C’s argument,” the judgment on the claim of Defendant C, the argument that he did not hear the dispersion order on 1.0, the lower court found the Defendant guilty of this part of the charges, on the following grounds: (a) the dispersion order was issued several times from the date and time to the new wall; (b) the distance between the vehicle and the participants in the dispersion order was not far away from 100 meters; and (c) the broadcast of the loudspeaker was made through the loudspeaker, on the ground that the Defendant was also ordered to dissolve the police.”

In full view of the evidence duly adopted and examined by the court below, the above fact-finding and determination by the court below are just and acceptable, and it does not seem that there was an error of law that misleads the defendant about the facts as alleged by the defendant.

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

4. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principles

A. As to the assertion related to the violation of the Assembly and Demonstration Act on June 12, 2011 (common assertion against the accused)

1) Summary of this part of the facts charged

No one shall hold any outdoor assembly or demonstration from 00:00 to sunrise, and anyone who intends to hold any outdoor assembly or demonstration shall file a report stating the purpose, date, time, place, method, etc. with the chief of the competent police station at least 48 hours prior to the outdoor assembly or demonstration, and shall, upon receiving a request from the chief of the competent police station for voluntary dispersion of illegal assembly or demonstration, dissolve the report without delay when he/she is ordered to voluntarily dissolve the illegal assembly or demonstration.

On June 12, 2011, L of the same police station delegated by the head of the Busan Young-do Police Station was in the same place as indicated in the crime 1.A.1 in the judgment of around 00:40 on June 12, 201, and requested voluntary dispersion on the ground of the night demonstration, which is prohibited from any demonstration, and the delegation of a non-report, from that time to 02:08, the request for voluntary dispersion and the order for voluntary dispersion was issued 13 times in total.

However, the participants of the demonstration including the Defendants did not immediately dissolve despite the dispersion order.

2) The judgment of the court below

The lower court revealed the following circumstances, i.e., ① the hours indicated in the facts charged during the trial (from 00:40 on June 12, 201 to 02:08). A broadcast that was 13 times is not an eight times, and the broadcast content is known to the Youngdo Police Station. Many of the participants at the assembly, multiple minutes of the assembly are undergoing an illegal assembly or demonstration not reported at night. Voluntary dispersion and return home, and the prime time goes against the law. ② At the lower court court’s trial, there is a separate statement of the request for dissolution and the dispersion order. The phrase of the dispersion order is difficult to be seen as having been rejected at the time of the assembly or demonstration, and the content of the above eight times’s broadcast constitutes a legitimate dispersion order: (i) the fact that there is no evidence that the public prosecutor presented at the time of the assembly or demonstration on June 11, 201, and (ii) the fact that there is no other reason to view it as a violation of the law by the Constitutional Court’s order for dispersion and order.

3) The judgment of this Court

Article 24 subparag. 5 and Article 20(2) of the Assembly and Demonstration Act provide that "any person who fails to comply with a dispersion order shall be punished by a fine, penal detention, or fine not exceeding 50,000 won for a period of six months or less, or a fine not exceeding 500,000 won." Article 17 of the Enforcement Decree of the Assembly and Demonstration Act provides that when intending to dissolve an assembly or demonstration pursuant to Article 20 of the Assembly and Demonstration Act, the head of the competent police authority or a police officer of the country who is authorized by the head of the competent police authority shall follow the following order." The order is set as "voluntary dispersion request, dispersion order, and direct dispersion" for the organizer of the assembly or demonstration. In light of the fact that a person who fails to comply with the dispersion order is punished pursuant to the Assembly and Demonstration Act, the situation at the time of notification, method of notification, and time and whether the phrase constitutes the dispersion order is the most important element.

In light of the following circumstances, the court below's aforementioned fact-finding and determination are just and acceptable, and there is no error in the misapprehension of the legal principles as argued by the prosecutor, in addition to the fact-finding and determination of the court below's above fact-finding and determination to the effect that "I will separate from 'I will issue a dispersion order' in practice (in order to distinguish between 'I will request dissolution' and 'I will issue a dispersion order')', which can be acknowledged by the evidence duly adopted and investigated by the court below.

Therefore, this part of the appeal by the prosecutor against the defendants is without merit.

B. As to the assertion on whether Defendant A plans for the three, four, and five desired buses

1) The judgment of the court below

The lower court appears to have the purpose of supporting and responding to the J which is frighten in accordance with the following circumstances revealed in the trial process, namely, ① the 1 and 2nd bus assembly and demonstration in the Hanjin Heavy Industries and informing the Defendant of the situation on the layoff of Hanjin Heavy Industries. On the other hand, the assembly and demonstration of the 3, 4, and 5th desired bus will have more emphasis on improving the overall problems related to the treatment of domestic workers and unreasonable social structure, such as re-regulation, and ② the person in charge of the assembly and demonstration of the 3, 4, and 5th desired bus is other than the Defendant (the proposal to participate in the assembly and demonstration of the 1, 4, and 5th desired bus). On the other hand, the Defendant stated it as P, in the case of the assembly and demonstration of the 3th desired bus, and there is no desire to change the name of the person in charge of the assembly and demonstration of the 4th desired bus to participate in the assembly and demonstration of the 3th desired bus and the wish to participate in the 4th assembly and demonstration.

2) The judgment of this Court

In light of the following circumstances, although the court below and the court below properly adopted and examined the evidence as a whole, it is acknowledged that the defendant attended the press conference even at the time of the desired bus, and promoted and urged an assembly or demonstration of the desired bus by means of distributing news report data, etc., it is reasonable to deem that the defendant's first proposal of a desired bus demonstration as a person who recommended the first time, has encouraged the general public to participate in the demonstration in order to raise social interest in the issue of unfair non-regular dismissal, and otherwise, the circumstance that the defendant was promoting the demonstration of the 3, 4, and 5 desired bus, and otherwise, the court below's aforementioned recognition and determination of facts are just and acceptable, and there is no error of law by misunderstanding the facts or misunderstanding the legal principles as pointed out by the prosecutor.

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

C. As to the assertion as to whether Defendant C plans a desired bus for the first, second, and third desired bus

1) The judgment of the court below

Of the facts charged in relation to desired buses 1, 2, and 3, the lower court found the Defendant guilty of all the charges of the above part of the charges on the grounds that it is difficult to recognize that the Defendant planned and organized an assembly or demonstration related to desired buses and carried out traffic obstruction by committing an assembly or demonstration, and it is difficult to recognize that the Defendant was involved in the crime of special obstruction of performance of official duties due to functional control, which led to the Defendant’s exercise of influence over the participants of the demonstration who committed violence or inciting it, and there is no evidence to acknowledge it.

- Summary of the circumstances described in the holding of the court below

○ Violation of the Assembly and Demonstration Act due to the hosting of the night demonstration on June 12, 201, general traffic obstruction on June 12, 201, and violation of the Assembly and Demonstration Act due to the hosting of each non-reported assembly on July 30, 201 and July 31, 201.

The following circumstances revealed in the process of the hearing: ① the defendant's duties are related to the rights and interests of non-regular workers; ② the defendant presented the purpose and direction of the assembly and demonstration; ② the defendant presented a statement or did not present a fee to support the situation that he/she established and implemented a plan on the means and method; ③ some participants in the assembly and demonstration conducted telephone communications with the defendant during the assembly and asked the defendant for countermeasures against the police's exercise of public authority; the main telephone contents are contact at the time of arrival of the assembly and demonstration site, and the defendant cannot find the circumstances that he/she exercised on-site control due to the defendant's answer to the on-site countermeasures; ④ comprehensively taking into account the writing and press articles posted by the defendant's car page, the defendant's defense that the defendant played the role of transmitting the situation of the assembly and demonstration in the process of conducting the assembly and demonstration; and ③ it is difficult to recognize the defendant's desire to participate in the assembly and demonstration or to have led the defendant to participate in the assembly and demonstration or to respond to the police's exercise of authority.

○ Injury caused by special obstruction of performance of official duties

In full view of the following circumstances revealed in the trial process, i.e., (i) the Defendant appears not to hold the above assembly or demonstration; (ii) the Defendant appears not to have held the above assembly or demonstration in the process of the demonstration; and (iii) the Defendant’s role in the demonstration, the background leading up to the involvement in the demonstration, and the process of deterioration in the form of violence, etc., it is difficult to deem that the evidence submitted by the Prosecutor alone was involved in the crime of causing interference with the execution of special public duties by functional control over the participants of the demonstration in which the Defendant committed violence was committed through the exercise of influence or inciting, etc.

2) The judgment of this Court

In light of the following circumstances, the court below properly explained by the court below, i.e., (i) the head of the non-regular office of the non-regular worker's right and interest protection of non-regular workers, and (ii) the defendant, the chief of the non-regular office of the above political party, should be deemed as participating in the desired bus demonstration at the level of a political party, and it is difficult to view that the defendant, as the chief of the non-regular office of the above political party, planned or organized the desired bus and moved to the actual operation. (iii) although the defendant posted a schedule related to the desired bus on the homepage of the non-obviousness Party, and responded to an interview, it is hard to see that the defendant's duty was merely delivered to the prosecutor's order to perform his duty in accordance with the resolution and instruction of the non-obviousness Party to which he belongs, and it is difficult to find that there is no error in the misapprehension of legal principles as to the defendant's act of interference with the performance of official duties as well as the judgment of the court below.

5. Determination on the assertion of unfair sentencing by the Defendants and the prosecutor

A. Defendant A

Examining the various sentencing conditions of this case, the following facts are revealed: (a) the defendant has no criminal record of imprisonment without prison labor or heavier punishment; (b) the victim of the obstruction of business, Co., Ltd. revoked the complaint against the defendant; (c) some of the victims do not want the punishment of the defendant; (d) the defendant does not directly exercise violence against the police officer in relation to the crime of the obstruction of business operation; (c) the defendant was holding a desired bus under the intention to attract social interest and responsibility for the problems of Hanjin Heavy Industries; (d) there are circumstances that may be considered in the motive; (e) the number of opposing groups against the situation of the dismissal of Hanjin Heavy Industries, such as the labor force or metal labor force, etc. after the third desired bus, and the nature of the crime is sharply increased by participating in the demonstration; and (e) the responsibility related to the assembly and demonstration is somewhat harsh for the defendant.

On the other hand, each of the crimes of this case committed an act of interference with traffic, interference with structure and non-compliance with an order of dispersion while hosting a night demonstration or non-report assembly or demonstration prohibited by the defendant, and obstructing police officers' performance of their official duties and inflicting injury on them in the process of maintaining order by multiple force. In light of the status and role of the defendant in the demonstration of desired bus, the degree and circumstances, etc., each of the crimes of this case is not less exceptionally responsible for the crime. Although each of the crimes of this case was designed to inform the fact that the dismissal of the Han Jin Heavy Industries was unfair and to inform the defendant of the fact that the crime of this case was committed, it is not possible to legally permit the act of violating the positive law and order beyond the limit of freedom of assembly and expression, and each of the crimes of this case committed an act of this case causes considerable damage to the citizens residing around the scene of the demonstration and significantly difficult traffic communication, and the crime of obstruction of public authority and seriously impairing the order of society by abusing public authority.

As above, the sentence of imprisonment with prison labor for a period of two years is too unreasonable, considering the following factors: (a) considering the Defendant’s age, character and conduct, intelligence and environment, motive, means and consequence of the crime; (b) the circumstances after the crime; and (c) family relationship, etc., it appears that the imposition of the Defendant’s treatment within the society, such as the suspension of the execution of imprisonment with prison labor, can sufficiently bring about special preventive effects.

Therefore, the defendant's ground of appeal disputing unfair sentencing is with merit, and the prosecutor's ground of appeal is without merit.

B. Defendant B

Comprehensively taking account of the various sentencing conditions in the instant case, the Defendant is only a simple participant in the assembly or demonstration of the instant case, and the Defendant appears to have not exercised violence against police officers, etc. during the process of the demonstration is favorable to the Defendant.

On the other hand, each of the crimes of this case committed an act of interference with traffic, interference with building, and non-compliance with a dispersion order while participating in the night demonstration prohibited by the defendant. The damage amount to each of the crimes of this case, such as the defendant's each crime of this case caused a lot of damage to citizens living around the place of demonstration, making it considerably difficult to communicate traffic due to a lot of damage, and it is unfair to dismiss the Han Heavy Industries, which committed each of the crimes of this case, is unfair to dismiss. The act of this case was conducted for the security of the J in Dara, which was in high-air farming, even though it was notified that the act of this case goes beyond the limit of freedom of assembly and expression, and it is not legally permitted due to

In light of the following factors: (a) the Defendant’s age, character and conduct, intelligence and environment; (b) motive, means and consequence of the crime; (c) the circumstances after the crime; and (d) family relationship, etc., the punishment of KRW 3 million imposed by the lower court against the Defendant is recognized as being within the appropriate scope of punishment according to the Defendant’s liability; and (d) it is deemed that it is too heavy or unreasonable.

Therefore, the grounds of appeal by the defendant and prosecutor disputing unfair sentencing are without merit.

C. Defendant 3

Comprehensively taking account of the various sentencing conditions in the instant case, it appears that the degree of the Defendant’s participation in each of the instant crimes is not significantly significant; the Defendant appears to have not exercised violence during the demonstration process; the Defendant was involved in a desired bus as a part of political activities at a political party level as the chief of the non-regular office of the non-permanent branch of the inventive step Party; and the process was likely to prevent such crime; and there are circumstances that may be considered in the motive of the crime, etc. favorable to the Defendant.

On the other hand, each of the crimes of this case is that the defendant committed an act of invasion on the structure, traffic obstruction, and non-compliance with a dispersion order, and it is considerably difficult for citizens living around the place of demonstration to communicate with traffic due to a lot of damage caused by each of the crimes of this case. Although each of the crimes of this case was aimed at the security of the J in high-air farming in Crain, by informing them that the temporary layoff of the Chinese Heavy Industries was unfair, the act of this case goes beyond the limit of freedom of assembly and expression, and is not allowed under the law due to a violation of the positive law and order, it is disadvantageous to the defendant.

In light of the Defendant’s age, character and conduct, intelligence and environment, motive, means and consequence of the commission of the crime, circumstances after the commission of the crime, and family relation, the punishment of KRW 5 million imposed by the lower court against the Defendant is recognized as being within the appropriate scope of punishment according to the Defendant’s liability, and it is not recognized that it is too heavy or unreasonable.

Therefore, the grounds of appeal by the defendant and prosecutor disputing unfair sentencing are without merit.

6. Conclusion

Therefore, since the appeal by the defendant A is well-grounded, the part of conviction against the defendant A among the judgment of the original court is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the appeal by the defendant B and C and the prosecutor against the defendants are all dismissed pursuant to Article 364 (4) of the Criminal Procedure Act, since the appeal by the defendant B and C and the prosecutor is without merit.

[Grounds for a new judgment against Defendant A]

Criminal facts and summary of evidence

The summary of the facts charged and evidence admitted by this court against Defendant A is the same as that of the judgment of the court below in each corresponding column against the above defendant. Thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Article 23 subparagraph 1 of the Assembly and Demonstration Act, the main sentence of Article 10 of the Assembly and Demonstration Act (the point of holding a night demonstration), each Criminal Act

Articles 185 and 30 (a point of interference with general traffic), Article 2(2) of the Punishment of Violences, etc. Act

Paragraph 1(1)1 of this Article, Article 319(1) of the Criminal Act (a point of joint residence intrusion), the first sentence of Article 144(2) of the Criminal Act;

Paragraph (1), Article 136(1), Article 30 (Aggravated Injury resulting from Special Obstruction of Performance of Official Duties), and Article 136(1) of the Assembly and Demonstration Act

The Assembly and Demonstration Act, Articles 22(2) and 6(1) of the Act on Assembly and Demonstration

Article 24 Subparag. 5, Article 20(2) and 20(1)2, Article 30(a) of the Criminal Act and each penalty

Articles 314(1) and 30(a) of the Act, and Article 136(1) of the Criminal Act (the point of obstruction of performance of official duties) (the point of obstruction of official duties)

Articles 40 and 50 (Mutual Crimes of Injury or Injury resulting from Special Obstruction of Official Duties against S, T and U) of the Criminal Code

Punishment provided for in the crime of causing bodily injury to a special obstruction of performance of official duties against severe S)

1. Selection of punishment;

Selection of each sentence of imprisonment for the remaining crimes except for special obstruction of performance

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Special Obstruction of Performance of Official Duties Whose Punishment is the largest) of the Criminal Act

Aggravated injury penalty provided for in the crime of bodily injury shall be aggravated)

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (As above, consideration of the favorable circumstances in light of the reasons for reversal)

1. Suspension of execution;

Article 62(1) of the Criminal Act (Special Considerations for the First and Second Reasons for Destruction)

Gunam-do (Presiding Judge)

Park Do-young

Yellow Inhumanity

1) Under the following, the name "defendant" is used only for the defendant who falls under any of the items, and the remaining defendants

state only the name.

2) Defendant C is limited to the obstruction of general traffic by July 9, 201.

3) Defendant A, B’s investigation records No. 209, 221