(영문) 서울동부지방법원 2014.2.7.선고 2012노1245 판결

As long as the condition for maintaining traffic order (hereinafter referred to as "the condition in this case") was delivered in a manner desired by the H Trade Union (hereinafter referred to as the "H Trade Union") that hosts the demonstration or demonstration (hereinafter referred to as " demonstration") as stated in the facts charged, the legitimate notification to the organizer is given. Therefore, the defendant's act of participating in the demonstration that deviates greatly from the two-lanes according to the above condition and takes part in the whole four-lanes constitutes a general traffic obstruction. In addition, taking into account the defendant's past power or demonstration at the time of the demonstration, the defendant's behavior at the time of the demonstration, and the circumstances giving several warnings to the police, the court below found the defendant not guilty of the defendant at least because the defendant's failure to do so could be recognized is erroneous or misunderstanding the legal principles.

2. The facts charged in this case

No person shall destroy, damage, or fire a road, a waterway, or a bridge, or obstruct traffic by any other means.

Nevertheless, from C 10:35 to 13:10 on the same day, the Defendant occupied the roadway for about 2 hours and 30 minutes, and obstructed the traffic of the vehicle along the land along which the vehicle passed, by occupying approximately 800 persons, including the members of the G Trade Union, who participated in the GF-C 4th bus demonstration, to the road in front of the D Building (E head office building 100m prior to the 100m width), through the road of Seodaemun Station, front of the National Police Agency, Seoul Station, and the south Young-gu.

3. The judgment of the court below

A. Ho-help’s demonstration was held by the police after filing a report on an outdoor assembly (the demonstration and progress) with the police, and this was legally reported. The evidence submitted by the prosecution alone is insufficient to recognize that the demonstration was carried out clearly beyond the reported scope, and there is no other evidence to acknowledge otherwise. Meanwhile, the police merely carried out the communication with the Director-General of Hno-Organization and carried the instant notification in the mail at the Hno-Organization’s office, and did not receive a receipt. Therefore, it cannot be deemed to legally inform the organizer of the said condition. (b) Even if the instant condition was duly notified to Hno- childcare, the organizer of the demonstration, the organizer of the demonstration, and the organizer of the demonstration, even if it was based on the evidence submitted by the prosecution, the demonstration was carried out only on the eight-lanes of the eight-lanes of the demonstration section, and the distance out of the said condition was shorter than the above, and thus, there is no sufficient evidence to acknowledge the remaining conditions of the vehicle’s passage through the police.

C. The lower court acquitted the Defendant on the ground that the facts charged in the instant case constituted a case where there is no proof of criminal facts as above.

4. Judgment of the court below

A. The purpose of Article 185 of the Criminal Act is to punish all acts that make it impossible or considerably difficult to pass through by causing damage to, damage to, or interference with traffic by means of land, etc., which are crimes protected under the legal interest of the general public’s traffic safety (see, e.g., Supreme Court Decisions 95Do1475, Sept. 15, 1995; 2008Do10560, Jan. 30, 2009). In addition, in light of the provisions and legislative intent of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”), where an assembly or demonstration is conducted on the road after completion of lawful reports under the Assembly and Demonstration Act, the traffic of the road would be restricted to any extent, and thus, if such assembly or demonstration was conducted within the reported scope or it was conducted differently from the reported scope, it shall be deemed that such assembly or demonstration seriously interfere with traffic under Article 185 of the Criminal Act, barring any special circumstance, is established.

B. The following facts are acknowledged according to the evidence duly adopted and examined by the court below.

(1) On August 23, 2011, HNoon submitted to the Seoul commissioner of Seoul Local Police Agency a report on an outdoor assembly ( demonstration or demonstration) to hold a demonstration with the content as shown in attached Table 1.

(2) On August 26, 2011, the Seoul Local Police Agency decided to limit the demonstration in the section as indicated in the instant facts charged with the instant case’s condition attached to attached Form 2 pursuant to Article 12(1) of the Assembly and Demonstration Act.

(3) On August 26, 2011, the Seoul Southern Police Station Information and its affiliated employees sought the instant notification of the terms and conditions, and sought in the future of the Hoon Assistance Office located in the 5th floor of the K Gaoon, Seoul J, and provided a telephone conversation with the director general of the organization and provided a explanation of the content, and provided a method of delivery. However, the said M was called as “influence in mail,” and the said letter of notification was put in the mail of the said office.

(4) Demonstration was a relatively large-scale demonstration with approximately 80 persons participating. From around C10:35 to around C10, there were 4 lanes in front of the Independent Station located in Seodaemun-gu Seoul, but, on the same day, from around 10:53 to around 100 meters of the Seodaemun-gu 100 meters of the same day, the demonstration was driven in a relief proposal using three lanes. After the National Police Agency, approximately 10 minutes of the distance between 10 minutes before the National Police Agency and 4 lanes temporarily stopped, but again, the distance between South and North Korea was driven by using three lanes except the exclusive bus lanes until the front building in front of the D Building where about 50 meters elapsed.

(5) A demonstration is conducted in a manner that leads to the passage of an arm’s length without occupying three lanes in front of the D building, and is completed at 13:10 on the same day. Considering that the police legally notified the organizer of the condition of this case, in light of the above facts, the number of hours occupied four lanes, which are the front line of the entire demonstration during a period exceeding 2 hours, is 28 minutes in total. Furthermore, if the number of flights under the condition of this case exceeds 50 meters, more than two lanes, the size, method, and duration of the demonstration is nothing more than 50 meters, it is difficult to readily conclude that there was an intentional interference with the passage of the vehicle due to the police’s proper traffic control, and there is no other evidence to acknowledge that there was an intentional interference with the passage of the vehicle in this case with the passage of the organizer of the vehicle due to a significant interference with the passage of the vehicle in this case. Furthermore, it is difficult to conclude that there was an intentional interference with the passage of the vehicle in this case.

5. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since it is without merit.