2016No506 A. Injury resulting from special obstruction of performance of official duties

B. Special obstruction of performance

(c) Damage to special goods for public use;

(d) General traffic obstruction;

(e) Violation of the Assembly and Demonstration Act;

(f) Defamation

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

2.b.(d)(e) B

Defendants and Prosecutor (Defendants)

For the purpose of sending (prosecution), for the sake of jurisdiction, for the sake of Red Cross, and for the purpose of public trial (public trial)

Attorney C, D, and E (for the defendant)

Law Firm F, Attorney G (for the defendant)

H Law Firm (for the defendant, Counsel for the defendant)

J Law Firm, Attorneys K and L (for the defendant)

Law Firm MU, Attorneys N, andO (for Defendant A)

Seoul Central District Court Decision 2015 Gohap690, 2015 Gohap728 (Consolidated) Decided January 22, 2016

September 8, 2016

1. The part of the lower judgment against the Defendants (including the part of acquittal in the grounds) shall be reversed in its entirety.

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

However, the execution of the above punishment shall be suspended for 4 years for Defendant A, and for 3 years for Defendant B from the date this judgment became final and conclusive.

A shall order each community service for 160 hours to Defendant A and 120 hours to Defendant B.

2. The prosecutor's appeal on the part not guilty (excluding the part not guilty in the grounds) among the judgment below is dismissed.

1. Summary of grounds for appeal;

A. Prosecutor's misapprehension of the legal principles and factual errors

There is no distinction between the report and time, place, and method of an outdoor assembly or demonstration held by the Defendants on July 24, 2014. However, the lower court erred in finding the Defendants not guilty on the grounds that there was no change in the organizer or participating organization of the outdoor assembly or demonstration initially reported, and that the Defendants were holding an outdoor assembly or demonstration beyond the scope of report (the part not guilty in the grounds) and that they did not comply with the dispersion order on the grounds that they were not reported (the part not guilty in the disposition).

B. misunderstanding of facts and misapprehension of legal principles by the Defendants

1) The Defendants’ violation of the Assembly and Demonstration Act regarding assemblies of around 16:40 up to 19:05 (hereinafter referred to as “the cultural system of April 11, 2015”) and assemblies of between around 19:00 up to 21:10 on April 16, 2015 (hereinafter referred to as “the memorial system of April 16, 2015”)

Whether a certain assembly constitutes an assembly under Article 15 of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) shall be determined by comprehensively taking into account all the circumstances, such as the main purpose, date, time, place, method, number of participants, mode of conduct by participants, details of progress, and required time, etc. of the assembly, and whether there exists a risk of infringing on other persons’ fundamental rights or public safety and order. An assembly which does not require a prior report should be deemed separate from the above assembly. However, the cultural system of April 11, 2015 and the memorial system of April 16, 2015 fall under an assembly on art, food, etc. during an assembly as provided in Article 15 of the Assembly and Demonstration Act, and there is no risk of infringing on other persons’ fundamental rights or public safety and order, and such assembly is also carried out thereafter, it is not necessary to make a prior report. Nevertheless, the lower court is the sole premise that only one assembly should be the objective of an assembly, and the political purpose or purpose of the assembly should be determined as the sole element of the assembly.

2) Defendant A’s injury resulting from the obstruction of performance of special duties or injury to special public goods on April 18, 2015

In the assembly and demonstration on April 18, 2015, there were 10,000 general citizens, so there was no order or order system during the assembly and demonstration. Accordingly, there was no order or order that Defendant A could not give orders or directions to the participants in the assembly and demonstration. Defendant A requested that the military be sent to the place where the bereaved families exist in the military, but there was no authority to give more instructions or directions, and the participants did not have a duty to follow such instructions. As above, Defendant A was unable to control the unspecified number of participants, and was not at the scene of the violence and demonstration that was in front of the short circuit of the broad square, and on that day, there was no functional control over the violence of 500 participants among the participants.

Nevertheless, the lower court determined that Defendant A had been able to have anticipated that Defendant A would have been able to have been injured by police officers during the process of gathering violence against police officers, and that Defendant A had been able to have been able to have been able to have been able to have been able to have been injured by police officers.

3) Defendant A’s defamation point

Defendant A cited suspicions among three-dimensionals that are discussed on June 22, 2015 through the press conference on the grounds that the search and seizure is unreasonable, and there was no doubt that such suspicions may be true, and thus, Defendant A did not make a statement of fact constituting the crime of defamation. Even if Defendant A’s statement constitutes a statement of fact, there was no prosecutor’s proof as to the fact that it is false; Defendant A’s statement is merely a demand for transparent information disclosure with respect to the President who is an authorized official official, and thus, there was no purpose of slandering it. Thus, Defendant A’s statement constitutes a case where there was no illegality in accordance with Article 310 of the Criminal Act.

4) Defendants’ assembly of Qua on July 24, 2014

A) The point of deviation from the reported scope

Unlike the contents of the prior advance report, the Defendants did not intend to occupy the previous lane without permission between the participants in the assembly and demonstration, and did not seem to have planned to drive it into a luminous plaza, and did not have to participate in it. Therefore, the Defendants are not liable to deviate from the scope of the report.

B) The point of general traffic obstruction

The Defendants did not participate in the progress at the time, and did not engage in any general traffic obstruction act. Moreover, the illegality of traffic obstruction, which inevitably occurred during the process of exercising the freedom of assembly, is not recognized. Rather, the police attempted to control the demonstration with the wall and career instead of considering the traffic flow scheme at all, thereby seriously interfering with general traffic.

5) The Defendants’ repeal of the Enforcement Decree of the Special Act on the Sewol ferry of April 11, 2015 and the Defendants’ total action for the Symnae of the Sewol ferry of March 2015

A) The point of non-compliance with the dispersion order

Although the police did not clearly cause a direct danger to the legal interests of others or public peace and order, the police has ordered a peaceful assembly and demonstration without any effort to guarantee a peaceful assembly and demonstration in a manner that restricts the freedom of assembly at a minimum. Such dispersion order by the police is unlawful.

B) The point of general traffic obstruction

Since the installation of a road by the police has lost the function of the road, it cannot be viewed as a road subject to the general traffic obstruction, and it cannot be viewed as a direct danger to public safety and order.

C) Specific obstruction of performance of official duties

The act of the police in blocking the passage of the participants in assemblies and demonstrations by installing a wall with a fence and a police bus is an unconstitutional exercise of public authority that infringes citizens' general freedom of action, and such act is also an excessive exercise of public authority, such as spraying and water distribution. Therefore, it cannot be deemed legitimate performance of public duties. Moreover, the Defendants did not agree with the fact that some of the participants in assemblies and demonstrations assault police officers, and did not directly participate therein.

6) Defendants’ R-related to April 16, 2015

A) The holding of an unreported outdoor assembly or demonstration since 21:05

The surviving family members and the participants of the memorial services have completed memorials in Seoul Square and tried to divide and unconstitutionalize the victims into the branch office of the Sewol ferry disaster, which is located in the Gwangju Square. This does not constitute an outdoor assembly or demonstration subject to a prior report.

B) The non-compliance with the dispersion order

The Defendants were only the peaceful movement with their surviving family members to the decentralization for the purpose of the victims of the Sewol ferry and did not clearly bring about a direct danger to the legal interests of others or public peace and order. Thus, the police’s dispersion order is unlawful.

C) The point of general traffic obstruction

The police has already lost its function as a road by blocking a procession with a sloping and career.

D) Specific obstruction of performance of official duties

Defendant A did not create relief or instigate a demonstration team, and the police rather took an excessive response.

7) The holding of an outdoor assembly that was not reported on May 1, 2015 to May 2, 2015 by Defendant A

Although Defendant A did not participate in the above events or conspired to do so, it is unreasonable to recognize Defendant A as holding an assembly by encouraging Defendant A to participate in the assembly on the website of the P organization.

8) The point of Defendant B’s general traffic obstruction on August 15, 2014

According to the nature of assembly and demonstration, uniform recognition of interference with general traffic in the assembly and demonstration is to punish fundamental rights under the Constitution.

C. The prosecutor and the Defendants’ assertion of unreasonable sentencing

With respect to each sentence sentenced to the Defendants (Defendant A: 3 years of imprisonment, 4 years of probation, 160 hours of community service, 2 years of imprisonment, 3 years of probation, 120 hours of community service, 120 hours of imprisonment), the Defendants asserted that the Defendants are too unreasonable, and that the prosecutors are too uneasible and unfair.

2. Ex officio determination

In the case of the trial, the prosecutor applied for the amendment of the Act to the effect that the Defendants’ primary facts charged are changed as shown in the attached Table 2014, Jul. 24, 2014, among the facts charged in relation to Q assembly held by the Defendants, and this court permitted it. As such, the above part of the judgment below cannot be maintained. Furthermore, the part of the judgment below as to the Defendants’ violation of the Act due to the deviation from the scope of reporting by the Defendants, which is the ancillary facts charged with the same body, should be reversed (see, e.g., Supreme Court Decisions 90Do1958, Apr. 26, 1991; 98Do3549, Feb. 12, 199; 2006Do9028, Apr. 27, 2007; 201No229, Sept. 29, 2011).

Each of the remaining arguments except the Defendants and the Prosecutor’s assertion of unfair sentencing, despite the above reasons for ex officio reversal, are still subject to the judgment of this court, and this is examined below.

3. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

A. Relevant legal principles

In a case where an outdoor assembly or demonstration was held beyond the bounds of recognition as identical to the reported outdoor assembly or demonstration, Article 6(1) of the Assembly and Demonstration Act relating to a case where such outdoor assembly or demonstration was held without reporting; however, in a situation where its identity is maintained, it constitutes a violation of Article 16(4)3 of the Assembly and Demonstration Act if the organizer who reported the outdoor assembly or demonstration clearly deviates from the bounds of the reported purpose, date, time, place, method, etc. In such a case, Article 16(4)3 of the Assembly and Demonstration Act is deemed to have been in violation of Article 16(4) of the same Act. In light of the language and text of Article 16(4)3 of the Assembly and Demonstration Act, even if the organizer who reported the outdoor assembly or demonstration deviates from the bounds of the reported purpose, date, place, method, etc., and if the outdoor assembly or demonstration was held first or led by the organizer or participating organization, it shall not be deemed that the reported outdoor assembly or demonstration was held in the same manner as that of the reported outdoor assembly or demonstration, etc.

B. Determination

In light of the above legal principles, it is reasonable for the court below to determine the identity of the demonstration as the main factor to consider the change of the organizer or participating organization, and further, in light of the circumstances as shown in the court below's holding based on the evidence duly adopted and investigated by the court below, the evidence submitted by the prosecutor at the court below and the court below alone cannot be deemed to have been proven without reasonable doubt that the defendants held a demonstration without prior report or held a demonstration beyond the extent that it is recognized as identical to the prior report by the chief of the competent police station. In addition, as the court below properly stated, the defendants' failure to comply with the dispersion order issued by the police on the ground that the defendants was not reported, can not be deemed to constitute a violation of the Act

Therefore, the judgment of the court below on the part not guilty (including the part not guilty in the grounds) of the judgment of the court below is just and without merit.

4. Determination on the Defendants’ assertion of misunderstanding of facts and misapprehension of legal principles

A. The Defendants’ assertion as to the violation of the Assembly and Demonstration Act regarding the cultural system of April 11, 2015 and the memorial system of April 16, 2015

1) Relevant legal principles

A) The purport of the Assembly and Demonstration Act, along with the reporting system as to an outdoor assembly, provides for the protection of legitimate outdoor assembly by grasping the nature and size of the outdoor assembly in advance by making a report, as well as the measures to prevent infringement of other persons’ fundamental rights and to maintain public safety and order by providing specific information about the outdoor assembly to an administrative agency. On the other hand, in the case of an assembly related to science, art, sports, religion, ceremony, friendship, entertainment, marriage, funeral and ancestor worship, funeral and ancestor worship, it is very dangerous that the assembly may infringe on other persons’ fundamental rights or public peace and order. Therefore, if the nature or purpose of the assembly constitutes an assembly as provided in Article 15 of the Assembly and Demonstration Act, it may not be punished as an unreported outdoor assembly even if it did not make a prior report (see Supreme Court Decision 2011Do2393, Mar. 28, 2012).

B) However, even if the competent police station knew that an outdoor assembly or demonstration will be held, or such assembly or demonstration will be peacefully conducted, it does not exempt from the obligation to report in advance (see, e.g., Supreme Court Decision 2007Do1649, Jul. 9, 2009). However, in light of the fact that the application of Article 6 of the Assembly and Demonstration Act is excluded only for the assembly listed in Article 15 of the Assembly and Demonstration Act, a certain assembly includes the nature of assembly regarding “a literary, artistic, sports, religion, ceremony, friendship, entertainment, funeral, funeral and ancestor worship, and border event,” and it does not pose a risk of infringing other persons’ fundamental rights or public safety and order, Article 15 of the Assembly and Demonstration Act cannot be deemed as applicable if such assembly or demonstration was held for the purpose of delivering it to them (see, e.g., Supreme Court Decision 2005Do1543, May 12, 2009).

2) Determination

A) April 11, 2015 cultural festivals

The circumstances acknowledged by the court below and the court below are as follows: ① the P organization announced in advance on April 11, 2015 that the "act of destruction of the Enforcement Decree of the Government" was performed on the homepage; ② the participants in the assembly use old kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick kick knick knick knick knick knick knick knick knick knick knick knick knick knick knick knick knick knick knick kn's knick knish kn's knick kn't.

B) Pool on April 16, 2015

8) On April 16, 2015, the lower court and the first instance court revealed that the P organization is scheduled to leave the door "the officially declared 1.5 p.m., the body "the 10 p.m., the hull of each c.m." after its exercise, and that the P organization will leave the door "the 10 p.m., the 4 p.m., the body of the first instance court and the second instance court's 6 p.m., the first instance court's 4 p.m., the first instance court's 4 p.m., the first instance court's 6 p.m., the first instance court's 4 p.m., the first instance court's 4 p.m.' on April 16, 2015, and the second instance court's 10 p.m., the first instance court's 6 p.m., the first instance court's 10 p.m., the first instance court's 20 p.m.

C) Sub-determination

As seen above, the cultural system of April 11, 2015 and the memorial system of April 16, 2015 do not constitute an assembly as prescribed in Article 15 of the Assembly and Demonstration Act. As such, the Defendants’ assertion on this is rejected.

B. Defendant A’s assertion on the injury resulting from the obstruction of special performance of official duties and damage to special public goods on April 18, 2015

1) Relevant legal principles

형법 제30조의 공동정범은 공동가공의 의사와 그 공동의사에 기한 기능적 행위지배를 통한 범죄 실행이라는 주관적 객관적 요건을 충족함으로써 성립하는바, 공모자 중 일부가 구성요건 행위 중 일부를 직접 분담하여 실행하지 않은 경우라 할지라도 전체 범죄에 있어서 그가 차지하는 지위, 역할이나 범죄 경과에 대한 지배 내지 장악력 등을 종합해 볼 때, 단순한 공모자에 그치는 것이 아니라 범죄에 대한 본질적 기여를 통한 기능적 행위지배가 존재하는 것으로 인정된다면, 이른바 공모공동정범으로서의 죄책을 면할 수 없다(대법원 1998. 5. 21. 선고 98도321 전원합의체 판결, 2004. 6. 24. 선고 2002도995 판결, 2005, 3. 11. 선고 2002도5112 판결, 2006. 12, 22. 선고 2006도1623 판결 등 참조). 그리고 이 경우, 범죄의 수단과 태양, 가담하는 인원과 그 성향, 범행 시간과 장소의 특성, 범행과정에서 타인과의 접촉 가능성과 예상되는 반응 등 제반 상황에 비추어, 공모자들이 그 공모한 범행을 수행하거나 목적 달성을 위해 나아가는 도중에 부수적인 다른 범죄가 파생되리라고 예상하거나 충분히 예상할 수 있는데도 그러한 가능성을 외면한 채 이를 방지하기에 족한 합리적인 조치를 취하지 아니하고 공모한 범행에 나아갔다가 결국 그와 같이 예상되던 범행들이 발생하였다면, 비록 그 파생적인 범행 하나하나에 대하여 개별적인 의사의 연락이 없었다 하더라도 당초의 공모자들 사이에 그 범행 전부에 대하여 암묵적인 공모는 물론 그에 대한 기능적 행위지배가 존재한다고 보아야 한다(대법원 2007. 4. 26. 선고 2007도428 판결, 2007. 9. 20. 선고 2007도4750 판결, 대법원 2010. 12. 23. 선고 2010도7412 판결, 대법원 2013. 9. 12. 선고 2013도6570 판결 등 참조). 또한, 어느 범죄에 2인 이상이 공동가공하는 경우 공모는 법률상 어떠한 정형을 요구하는 것이 아니고 2인 이상이 공모하여 범죄에 공동가공하여 범죄를 실현하려는 의사의 결합만 있으면 되므로, 비록 암묵적으로라도 수인 사이에 의사가 상통하여 의사의 결합이 이루어지면 공모관계가 성립하고, 이러한 공모가 이루어진 이상 실행행위에 직접 관여하지 아니한 자라도 다른 공모자의 행위에 대하여 공동정범으로서 형사책임을 지며, 또 결과적가중범의 공동정범은 기본행위를 공동으로 할 의사가 있으면 성립하고 결과를 공동으로 할 의사까지는 요하지 않는바, 특수공무집행방해치상죄는 단체 또는 다중의 위력을 보이거나 위험한 물건을 휴대하고 직무를 집행하는 공무원에 대하여 폭행·협박을 하여 공무원을 사상에 이르게 한 경우에 성립하는 결과적가중범으로서, 행위자가 그 결과를 의도할 필요는 없고 그 결과의 발생을 예견할 수 있으면 족하다(대법원 2002, 4. 12. 선고 2000도3485 판결, 2008.6.26. 선고 2007도6188 판결 등 참조). 한편 공모공동정범에 있어 그 공모에 관하여는 모의의 구체적인 일시, 장소, 내용 등을 상세하게 설시하여야 할 필요는 없고, 범행에 관하여 의사가 합치되었다는 것만 설시하면 된다(대법원 2008. 11. 13. 선고 2006도755 판결 등 참조).

2) Determination

As seen in the above legal doctrine, the degree of control or neglect over the process of crime is one of the elements to determine the existence of functional control over the competitor. As such, in determining the degree of control or neglect, it may be considered as an important matter whether the command and order system exists in the participants in the assembly and demonstration. However, it is only one of the circumstances necessary to determine the degree of control or neglect, and it is only one of the circumstances necessary to determine the existence of functional control, and such characteristics of the organization or the right to command of the competitor is recognized, but it does not necessarily mean that the recruiter has a functional control over the crime.

Comprehensively taking account of all the following circumstances acknowledged by the lower court’s duly admitted evidence, Defendant A was a full-time operator of a P organization, not only was in the position of a person holding an assembly or demonstration on April 18, 2015, but also was in the position of a police officer who participated in the assembly or demonstration on April 18, 2015 in light of the situation and experience until the time, etc., if multiple participants of the assembly or demonstration continue to participate in the assembly or demonstration as seen above, the police officer’s physical conflict with the police officer who attempted to stop the assembly or demonstration could have caused violence with the police officer. Furthermore, Defendant A did not take any reasonable measures sufficient to prevent such conflict. Furthermore, Defendant A’s allegation that the assembly or demonstration was not an act of causing harm to the police officer’s body or demonstration on the part of the participants of the assembly or demonstration on the part of the participants of the assembly or demonstration on the part of the participants of the participants of the assembly or demonstration on the part of the participants of the assembly or demonstration on the part of the participants of the assembly or demonstration and demonstration.

① On April 11, 2015, from April 18, 2015 to April 18, 2015, the P organization in which Defendant A is full-time operating members planned an event from April 18, 2015 to April 18, 2015 by starting "V" for the abolition of the Enforcement Decree of the Sewol Ferry Disaster and the "total calendar Action" for the Sewol Ferry Disaster. As such, the event on April 18, 2015, called "V, was the last day of the relevant Central Action Week."

② In each assembly and demonstration on April 11, 2015 and April 16, 2015, Defendants urged participants in the assembly and demonstration to take a walk in the direction of the audience, resulting in a conflict between the police and the police in order to prevent the collision, and resulting in a serious physical fighting between the participants and the police.

③ On April 11, 2015, Defendant A organized a demonstration, and used broadcasting vehicles, at 23:46, and made it easier for Defendant A to use the broadcasting vehicles. We did not have to do so. There was a defect to ensure that today’s fighting starts and may put it into a regular air on April 18, 201. Around April 18, 201, Defendant A made a statement to the effect that “if it was difficult for Defendant A to put it in a heavy force on April 16 and April 18, 201 so that a large number of people gather, it would be good.”

④ On April 11, 2015, Defendant B also made a statement to the effect that, at the end of the assembly on April 16, 2015, the body ought to be strengthened, and that, on April 18, 2015, Defendant B should gather together with this fold.

⑤ Defendant A, even on April 16, 2015, should not be satisfed at the end of the conjecture that was progress in the Seoul City’s square, but rather at the end of the conjecture. Whether it is a country or not is a country? When us should not put forward again in this land, she should not put forward again. Defendant A made a statement to the effect that she is satisfy with his/her bereaved family.

④ On April 15, 2015, Defendant A posted a notice on the website of the Seoul Metropolitan Government Government on the complaint stating that “I will bring about the implications of the people to see the government and political power that only you talk with and that I talk about. The author respondeds to the demand of the people only to the extent that their interests are threatened. To prevent any cruel gap, I now need to be broken off and opened.” On April 16, 2015, Defendant A made a statement to the effect that “W of the assembly held in the Seoul Metropolitan Government Government Government Government Government Government Public Forum” was “I am a luminous plaza around 16:30 on April 18, 2015.”

7) Defendant A participated in the demonstration on April 18, 2015, and took place from time to time with the standing operating members or operating members of the P organization, and occupied the road along with the participants in the demonstration, organized the demonstration in the luminous square, and made it the most beautiful time. If the government does not resist the purport of the people, it may not be recognized as the government. There are many divisions, including the front-time democratic labor union leader, and the front-time election campaign. At the same time, there are 24 days following the 24th anniversary of the past clerical error, including the front-time election campaign and the front-time election campaign. At the same time, Defendant A tried to be forgotten at the end of this night created by us. If his family and citizens are gathered, the definition can be set, the truth can be revealed, and the government made a speech to the effect that it can distort the corruption regime.

8. The participants during the assembly committed acts such as cutting off the police with a twit line, disturbance of day, etc., cutting off the police and police buses to the police, cutting off the police safety fences, cutting off the police safety fences, cutting off the police spons, cutting off the police spons, cutting off the police officers by drinking and sponsing the police, cutting off the bus on the police bus, and securing the space between the wall bus and bus by carrying the bus by hand, or multiple participants by carrying the bus with hand. This is difficult to view it as an contingent action by those who participated in the demonstration, and rather is close to a somewhat organizational form, and if the sponsoring side, including the Defendant A, made efforts to restrain and remove such violence, it appears that it could have been prevented.

9. An act of violence by part of the participants was continued for a long time, and the conference and demonstration, including Defendant A, who was at the scene of the demonstration on April 18, 2015, was held or could have been held during the preparation process of such an act of violence or thereafter.

(10) On April 18, 2015, the organizer of an assembly or demonstration, including Defendant A, did not make efforts to maintain order at the time of the assembly or demonstration, and did not make efforts to restrain and remove violence, such as making a declaration of completion of the demonstration in a situation where it is impossible to maintain order as above.

C. Defendant A’s assertion as to defamation

1) Relevant legal principles

(A) the freedom of expression and its limitation;

All citizens have the freedom of expression, such as the freedom of speech and press. The content of the freedom of expression is the freedom of expression to form one’s own opinion, the freedom of expression to express and deliver that opinion to many and unspecified persons, and the freedom of press, etc. to report and disseminate objective facts. In addition, the right to express one’s own opinion through the media and contribute to the formation of public opinion also includes the contents of the freedom of press and press. Such freedom of expression is not only an essential fundamental right of the people under the modern democratic political system, but also an important fundamental right to realize human dignity and value (see, e.g., Supreme Court Decision 2012Da105482, Mar. 10, 2016).

However, since freedom of expression is not absolute and unlimited, in particular, an expressive act is likely to inevitably conflict with another person’s rights, reputation, social ethics, or morality, Article 21(4) of the Constitution provides that “the press and publication shall not infringe another person’s reputation, right, or public morals or social ethics.” At the same time emphasizing liability and obligations with the freedom of expression, the requirements for restrictions on such freedom are stipulated, and as like other fundamental rights, it may be restricted for national security, public welfare, and maintenance of order as prescribed in Article 37(2) of the Constitution (see, e.g., Supreme Court Decisions 2012Da105482, Mar. 10, 2016; 2012Hun-Ba37, Jun. 27, 2013; 2017; see, e.g., the crime of defamation and insult under Article 307 of the Criminal Act and Article 311 of the Criminal Act, which are the social evaluation of a person’s external value, is not a violation of social reputation (see, 97).

Meanwhile, in setting the limitation between freedom of expression and protection of reputation, the standard of review should vary depending on whether the victim is a public figure or a private figure, or whether the expression concerns a public concern or belongs to a pure private matter (see, e.g., Supreme Court Decision 2006Da53214, Apr. 24, 2004). In the case of expression concerning a matter of public and social meaning, restriction on freedom of speech should be mitigated (see, e.g., Supreme Court Decision 2006Da53214, Apr. 24, 2004). Considering that public officials’ morality, integrity, or business performance should always be subject to citizen’s surveillance and criticism (see, e.g., Supreme Court Decision 2006Da3519, May 12, 2006). Such surveillance and criticism should not be easily restricted unless it is malicious or unreasonable (see, e.g., Supreme Court Decision 207Da3519, Sept. 27, 2007).

B) The statement of the fact in the crime of defamation

In the crime of defamation, a statement of fact means a report or statement on a specific past or present fact, which is an expression of opinion with a value judgment or evaluation, and its contents can be proven by evidence. In determining whether a report or statement is a fact or an opinion, the determination should be made by taking into account the overall circumstances, such as the ordinary meaning and usage of the language, the possibility of proof, the context in which the speech in question was used, the social situation in which the expression was used, etc. (see, e.g., Supreme Court Decisions 2010Do17237, Sept. 2, 201; 2013Do14875, Jun. 23, 2015; 2013Do14875, Jun. 28, 2015; 208Do16879, Jul. 19, 207).

C) false burden of proof

Inasmuch as the facts constituting the constituent elements of a crime charged in a criminal trial are subject to the prosecutor’s burden of proof, whether it is subjective or objective. As such, in a case prosecuted for defamation of false facts, a prosecutor must prove that the alleged facts were inconsistent with the objective truth, as well as that the Defendant knew that the alleged facts were false, and that the alleged facts were false, and the crime of defamation by publication cannot be established merely on the sole basis of the fact that there was no proof that the alleged facts were false. However, in determining whether the aforementioned facts were true or not, a prosecutor who is the active party must prove the absence of such fact without reasonable doubt if it was about the absence of a specific act at a specific period and at a specific place. Although it is impossible for a prosecutor to prove the absence of a specific period and space, it is more easy to prove and prove the existence of such facts, and thus, it is reasonable to conclude that the prosecutor is not subject to 200, 200, and 206, 90, 200, 200, 206, 9, 20, etc.

D) Whether the illegality of Article 310 of the Criminal Act is denied

There is no room to apply Article 310 of the Criminal Act to the act falling under defamation by publicly alleging false facts (see, e.g., Supreme Court Decisions 92Do234, Apr. 13, 1993; 2010Do2690, May 9, 2012; 2013Do4786, Jul. 9, 2015).

(ii) the facts of recognition

According to the evidence duly adopted and examined by the court below, the following facts may be recognized:

① As seen above, Defendant A, as the chairman of the joint operation of T Group, hosted and actively participated in an assembly related to the Sewol ferry as a standing operator of the P Group. On June 19, 2015, the investigative agency seized and searched Defendants, P Group offices, etc. on the same day, Defendant A criticized the police’s response to the assembly and demonstration related to the Sewol ferry and the search and seizure by the prosecution, and conducted a briefing session with a view to identifying the truth of the staff of the Sewol ferry and punishing the responsible person.

② Nevertheless, when the search and seizure procedure of the investigation agency against the Defendants, etc. continued, on June 22, 2015, when the search and seizure procedure as mentioned above was in progress, Defendant A took place again on June 22, 2015 in the order of "a statement of the fact of search and seizure to the Defendants, P organization offices, X organization offices, and Y organization offices," "a claim against the Government and the police against the infringement of the freedom of assembly and demonstration in the world-related assemblies and demonstrations ? "a clause as to the above search and seizure" ? "a clause as to the act of conducting the above search and seizure" ? "a statement of intent to keep the P organization in progress without the pressure of the government," and the entire contents are as follows.

4월 19일 사무실과 자동차에 대해서 압수수색을 했는데 그 다음날 핸드폰을 또 압수해 갔습니다. 같은 날 영장이 나왔는데 첫날 오고 또 둘째 날 오고 가택 수색영장은 언제 집행할 지 아직 모르겠습니다. 왜 이렇게 하는지 저도 잘 모르겠습니다. 오늘 서울경찰청 가서 핸드폰 압수수색 과정을 밟고 왔습니다. 핸드폰을 이미징 복사를 해서 해시 값을 뜨고 그런 상태이고, B 위원장은 거기서 안돼서 경찰청 본청으로 가서 그 작업을 하고 있는 상황입니다.정말 어처구니가 없습니다. 집회시위의 자유는 헌법 제21조에 의하면 집회, 시위, 결사, 언론, 출판 이런 것은 허가가 아닙니다. 국가가 허가하고 말고 하는 게 아닙니다. 지금 집시법이 잘못됐고 그리고 관행이 잘못돼서 마치 허가제처럼 운영이 되고 있는데 집회 시위는 헌법도 보장하고 있는 국민의 기본권입니다. 이 집회 시위의 자유를 우리가 행사하겠다는 것을 가로막은 것 그것은 정부입니다. 유가족을 폭행하고 캡사이신을 쏴댔고 물대포를 쏴대면서 집회시위의 자유를 가로막은 것 그것은 이 정부고 경찰이라는 것을 다 알고 있습니다. 헌법재판소의 결정만 해도 무시하면서 차벽을 설치해놓고 시민들이 일체 이동하지도 못하게 해놓고 도리어 큰소리 칩니다.집회 시위의 자유, 백번 양보해도 집회 시위와 관련한 부분은 압수수색할 대상이 아닙니다. 집회 현장에서, 시위 현장에서 이미 채증 다 했고 행위가 다 끝난 일입니다. 집을 뒤져서 핸드폰을 뒤져서 사무실을 뒤져서 뭘 어떻게 하려는 겁니까? 이게 집회시위의 자유를 억압하는 걸 넘어서 결사의 자유조차 허용하지 않겠다, P단체 이런 단체를 결성하는 것조차 허용하지 않겠다는 겁니까? 묵과할 수 없는 행동을 하고 있습니다.사실 압수수색할 것은 저 청와대입니다. 정말 궁금합니다. 국민들이 그런 의혹을 제기하고 있습니다. 4월 16일 7시간 동안 나타나지 않았을 때 뭐하고 있었냐? 혹시 마약하고 있던 거 아니냐? 전 궁금합니다. 청와대 압수수색 해서 마약 하고 있었는지 아니었는지 한번 확인했으면 좋겠습니다.또 그런 얘기도 나옵니다. 피부미용, 성형술 등등 하느라고 보톡스 맞고 있던 거 아니냐? 보톡스 맞으면 당장 움직이지 못하니까 7시간 동안 그렇게 하고 있었던 것 아닌가 그런 의혹도 있습니다. 그것도 한번 확인해 봤으면 좋겠습니다. 저 청와대 곳곳을 다 뒤져서 구석구석을 다 뒤져서 마약이 있는지 없는지, 보톡스 했는지 안 했는지 확인해보고 싶은 마음이 굴뚝 갈습니다.이렇게 정부가 폭력으로 경찰력으로 공권력으로 저회 유단체 탄압한다고 해서 유단체 무너지지 않습니다. 세월호 참사 아무리 덮으려고 해도 덮을 수 없습니다. 여기 피해자들 유가족들 다 죽이지 않는 한 그리고 세월호 참사의 진실을 알고 싶어 하는 밝히고 싶어 하는 저를 비롯한 이 나라의 국민 시민들 다 죽이지 않는 한 덮을 수 없습니다. 유단체 탄압할 생각하지 말고 세월호 참사 덮을 생각하지 말고 빨리 국민의 요구에 항복하길 바랍니다. 국민의 요구에 부응해서 세월호 참사 진상규명특별위원회 제대로 작동할 수 있도록 협조해야 하고 시행령 폐기하고 특별조사위원회 안으로 받아들여야 합니다.그렇지 않으면 우리는 계속 이 정부를 상대로 해서 싸울 수밖에 없습니다. 진실은 반드시 밝혀집니다. 진실은 반드시 밝혀내고 말 것입니다. 우리가 목숨이 붙어있는 한, 우리가 살아 있는 한, 우리가 사람임을 포기하지 않는 한, 우리는 반드시 진실을 밝힐 것이고 그 진실을 밝히는 길을 막는 것이라면 그 누구라도 싸울 수밖에 없습니다. 그래야만 이 나라가 보다 더 안전해지고 이 나라가 보다 더 사람이 사람답게 살 수 있는 그런 나라가 될 수 있을 것이기 때문입니다.그런 나라를 만들기 위해서 아무리 모진 탄압 속에서도 꿋꿋하게 굳세게 더욱 강하게 저희 P단체 발족도 제대로 하고 더욱 힘차게 싸워가겠습니다. 더욱 힘차게 싸워갈 것욜 약속하겠습니다.

③ The instant remarks consist of the parts of the entire remarks as indicated in the foregoing Section 2, and the content of which is to be seized and searched by an organization of the Republic of Korea, is not the Ducts, but the office of the Republic of Korea. During 7 hours immediately after the Sewol ferry, the Z President raised suspicions that the Republic of Korea would not engage in narcotics or undergo the tax for 7 hours immediately after the Sewol ferry. It is intended to confirm whether there was narcotics through search and seizure of an organization of the Republic of Korea, or whether there was retaliations.”

3) Determination

A) The instant statement pertains to the President’s happiness at the time of the Sewol ferry incident, and it constitutes an issue of public concerns. However, the part that Defendant A used to the effect that “the President was a drug” is an expression of fact or an expression of opinion, regardless of whether it is a statement of fact or an expression of opinion, it cannot be deemed that it is an scarcity description or a scarcity, and it cannot be deemed that it constitutes a malicious and extremely rush expression, and thus, it cannot be deemed that it is considerably unreasonable. Accordingly, the instant statement constitutes an expression that cannot be protected by the freedom of expression, and thus, constitutes a crime of defamation or insult, which may be punished in accordance with relevant laws, such as the crime of insult or insult.

B) As to whether the instant speech constitutes a case in which specific facts were indicated, comprehensively taking account of the following: (a) the fact of recognition and the evidence duly admitted and examined by the lower court; (b) the ordinary meaning and usage of the language as follows; (c) the possibility of proof; (d) the overall nature of the Defendant A’s speech; (c) the detailed context of the part of the instant speech; and (d) additional remarks to supplement the factual nature thereof; and (d) the social situation at the time of the instant speech, etc., the Defendant A expressed the following facts by suggesting that the Defendant A was unable to perform his duties for seven hours after the incident of the Sewol ferry; and (e) the Defendant A was unable to perform his duties appropriately for the following seven hours after the incident of the Sewol ferry.

① The words such as 'narcotics' or 'narcotics drugs' are used as a sworn expression, such as taking the other party to the speech, etc. However, the suspicion introduced by Defendant A through the speech of this case may be alternate and indirect, but according to the language and text, it can be said that 'the location of a person who was unknown at the time when the incident occurred in the Sewol ferry may not be because he was under medication or under the arche procedure.' From the perspective of the person who received such expressions or text, it is difficult to see that the speech of this case merely expressed the judgment or behavior of the President or the President, etc., and it is difficult to see that the specific behavior of the two President at the time immediately after the Sewol ferry occurred.

② It is true that whether the President, at the time of the occurrence of the Sewol ferry incident, conducted narcotics or conducted Stockholms can be proved by evidence.

③ Defendant A introduced the suspicions between the Z President’s above-mentioned narcotic medication or the Stockholm surgery, and added the purport that “it should be followed whether there was a narcotic drug or whether there was Stockholm by searching and searching Cheongdae, on the premise that the substance of the suspicions may be true.”

④ Defendant A made the instant speech by means of an interview with many and unspecified persons.

⑤ At the time, the Sewol ferry was under the interest of the people due to the seriousness of the damage, and there was a criticism that the government did not perform its duties properly for seven hours after the incident of the Sewol ferry. The suspicion of the President's happiness was generated in the context of the above criticism.

C) Furthermore, according to whether the instant statement was false or not, the evidence duly adopted and examined by the court below, and the record of the National Assembly Steering Committee of Korea which was submitted by the prosecutor to the trial for the first time, the records of the Investigation of Special Members of the National Assembly (Extraordinary Minutes), the minutes of the Special Committee on the Settlement of Accounts and Accounts, and the statements in the AA member's data response, as to whether Defendant A was aware of its falsity, the President President, etc. received three written reports from Cheongbu and 30 minutes at intervals of 20 minutes through 30 minutes from the outside without an external event until the time of the occurrence of the incident of April 16, 2014 to the National Assembly, and received 11-minutes from the Seobu Office, and submitted by the prosecutor to the court for determination of the current situation, and the prosecutor did not present any other official testimony or material evidence as to the instant case as to which the President did not appear to have been aware of the existence of the facts and material facts as to the instant statement.

D) Meanwhile, as seen earlier, there is no room to apply Article 310 of the Criminal Act on the rejection of illegality, since Defendant A’s act constitutes a crime of defamation by a statement of false facts.

E) Therefore, the lower court’s determination on this part of the facts charged is justifiable, and the Defendant A’s assertion on this part is without merit.

D. As to the Defendants’ violation of the Assembly and Demonstration Act on July 24, 2014

Comprehensively taking account of the following circumstances acknowledged by the court below and the evidence duly admitted and examined by the court below, the court below's determination is just and there is no merit in the defendants' assertion on this part.

① The Defendants shall be the co-operating chairman of the T Organization.

② T단체는 2014. 7. 24. 21:30경부터 23:59경까지 'AB'이라는 명칭의 옥외집회 ·시위 신고를 하면서 '8,000명이 서울광장 → 을지로입구역 → 을지로2가 → 을지로3가 → 종로3가 → 종각 →→ 광화문우체국 → 광화문광장 이순신 장군 동상 앞까지 역방향 3개 차로를 통해 행진'한다는 내용의 "옥외집회(시위 · 행진)신고서"를 제출하였다.

③ However, on its website, T Group announced the schedule on July 24, 2014, and announced the publicity posters posted at the same time as 22:24: (a) 24: (b) 32: (c) 32: (a) 3: (a) 24: (a) 3: (b) 4: (a) 22: (b) 3: (c) 10: (d) 10: (a) 10: (b) 3; and (c) 4: (d) 10: (c) 3:

④ In addition, on July 22, 2014, T Organizations announced the schedule from July 7, 2014 to July 24, 2014 as the subject of ‘AC' on its website, and announced 'AD' as to the schedule on July 24, 2014: 22:00, and 'AD' as to the date and place: 22:00, the Seoul City Cheongpo square as a single agricultural growth.

⑤ At around 20:30 on July 24, 2014, Defendant A believed that “I believe I will be the special law for the Sewol ferry that I would be our bereaved family.” The Government has no such example. However, the Sewol ferry itself is a case that is not an example. We need to create a special law in Korea. So, we have no right to do so. We need to be responsible for the Cheongdae. We need to be responsible for the Cheongdae, which is a lusary square. The luscam for this purpose is a lusical square. The luscam for this purpose, together with the bereaved families and the people, instigated the luscam as a lusical square.”

(6) As the participants in the assemblies and demonstrations regarding the previous Sewol ferry, it is reasonable to view that the Defendants could have anticipated the participants to move along the luminous square while moving along the lanes on July 24, 2014.

E. The defendants' remaining grounds for appeal

As to the defendants' remaining arguments on the grounds of unfair sentencing, the court below rejected the above assertion in detail on the judgment of the court below by stating the same argument at the court below. In comparison with the above judgment of the court below, the judgment of the court below is just and it is not erroneous in the misapprehension of law as alleged by the defendants. Accordingly, this part of the defendants' arguments are without merit.

5. Conclusion

Since the guilty part of the judgment of the court below (including the acquittal part of the grounds for appeal) against the Defendants has the above reasons for ex officio reversal, the above part shall be reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the Defendants and the prosecutor’s respective arguments on unfair sentencing, and the judgment below shall be rendered again after oral pleadings. Since the prosecutor’s appeal on the acquittal part of the judgment below (excluding the acquittal part of the grounds for appeal) is without merit, it shall be dismissed pursuant to Article 364(4) of the

Criminal facts and summary of evidence

The criminal facts against the defendants recognized by this court and the summary of the evidence thereof are as stated in each corresponding column of the judgment of the court below, except for adding "Seoul Square" to "Seoul Square" in paragraph 3 of Article 7 of the judgment of the court below among the criminal facts constituting the crime, and "1. T Group homepage - President's response to 1. T Group homepage - Police Fighting?", "Records of the Steering Committee of the National Assembly of Korea, the records of the Special Committee on the Investigation into Korean History for the Investigation into the Truth of the Sewol Ferry (Extraordinary Minutes), the minutes of the Special Committee on Budget and Accounts of the Special Committee on Budget (Extraordinary Minutes), and each of the statements in AAA's written response to data requested by the National Assembly members" as stated in each corresponding column of the judgment of the court below. Thus, it shall be cited as it is

Application of Statutes

1. Article applicable to criminal facts;

Defendant A: Articles 22(3) and 16(4)3 of the Assembly and Demonstration Act; Article 30 of the Criminal Act; Articles 22(2) and 6(1) main sentence of the same Act; Article 30 of the Criminal Act (excluding the holding of an assembly or demonstration without filing a report on April 18, 2015; excluding the holding of an assembly or demonstration without filing a report on April 18, 2015); Articles 24 subparag. 5, 20(2), and 20(1)2 of the Assembly and Demonstration Act; Article 30 of the Criminal Act; Article 30 of the Criminal Act; Article 185 and 30 of the Criminal Act; Article 14(1) and the main sentence of Article 6(1) of the same Act; Article 30 of the same Act; Article 136(1) of the same Act; Article 30 of the same Act (excluding the holding of an assembly or demonstration without filing a report on April 18, 2015); Article 14(1) of the Criminal Act;

Defendant B: Articles 22(3) and 16(4)3 of the Assembly and Demonstration Act; Article 30 of the Criminal Act; Articles 22(2) and 6(1) main sentence of the Criminal Act; Article 30 of the Criminal Act; Article 24 Subparag. 5 and Article 20(2) and Article 20(1)2 of the Assembly and Demonstration Act; Article 30 of the Criminal Act (Article 20(1)5 of the Criminal Act; Article 20 of the Criminal Act (Article 20(1)5 of the same Act) (Article 22(3) and Article 16(4)3 of the Assembly and Demonstration Act; Article 144(1), Article 136(1), and Article 30 of the Criminal Act (Article 30 of the same Act)

1. Selection of punishment;

Defendant A: Selection of imprisonment for each crime except for the injury resulting from special obstruction of performance of official duties

Defendant B: Selection of imprisonment

1. Aggravation for concurrent crimes;

Defendant A: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment as provided for in the crime of bodily injury resulting from special obstruction of performance of official duties against AF with the largest punishment)

Defendant B: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment and concurrent punishment as provided for in general traffic obstruction on May 1, 2015)

1. Suspension of execution;

Defendants: Article 62(1) of the Criminal Act (General Considerations favorable to the Reasons for Sentencing below)

1. Social service order;

Defendants: each of the Defendants under Article 62-2 of the Criminal Act

Reasons for sentencing

1. The scope of punishment;

(a) Defendant A: Imprisonment with prison labor for three years to forty-five years;

(b) Defendant B: Imprisonment for not more than 15 years;

2. Scope of the recommended sentencing criteria; and

A. Defendant A

1) Crimes of violation of each Act and subordinate Act, and each general traffic obstruction and defamation

The sentencing criteria are not set.

2) Each special obstruction of performance of official duties

[Punishment] Forced execution of official duties for the obstruction of performance of official duties (Type 1)

[Special Persons] Cases where the power of an organization or a group or a group of public officials has shown or carried dangerous objects (type 1), and where there are many public officials who have suffered damage (type 1)

[Scope of Recommendation] One year to six years (Aggravated Field)

3) Crimes of causing bodily injury to each special obstruction of performance

[Types] Injury or injury resulting from a special obstruction of public duties by causing a death or injury to a special obstruction of public duties (type 1)

[Special Persons] Cases where the power of an organization or a group or a group of public officials has shown or carried dangerous objects (type 1), and where there are many public officials who have suffered damage (type 1)

[Scope of Recommendation] Three to nine years (Aggravated Field) imprisonment

(iv)an injury to each special goods for public use;

[Types] Invalidity and Destruction of Public Goods (Type 1) as a crime group of obstruction of performance of official duties

[Special Persons] The case of showing the power of an organization or a group or carrying dangerous objects

[Scope of Recommendation] Imprisonment from one year to four years (Aggravation)

(e) Scope of final recommendation: Imprisonment for not less than three years (by the lower limit of the sentencing criteria);

B. Defendant B

1) Each special obstruction of performance of official duties

[Types] The obstruction of the performance of official duties / the coercion of official duties (Type 1) for the crime group of obstruction of the performance of official duties

[Special Persons] Cases where the power of an organization or a group or a group of public officials has shown or carried dangerous objects (type 1), and where there are many public officials who have suffered damage (type 1)

[Scope of Recommendation] One year to six years (Aggravated Field)

(b) The scope of final recommendation: Imprisonment for not less than one year (by the lower limit of the sentencing criteria);

3. Determination of sentence;

The freedom of assembly and demonstration should be guaranteed to the maximum in a democratic society. However, the assembly and demonstration must be lawful and peaceful, and the harmony with other legal interests should be fully taken into account. Although the majority of criminal power on assembly and demonstration are well aware of the above facts, the Defendants did not observe the legal procedures essential for the appropriate security, and did not endeavor to pursue the assembly and demonstration peacefully, they committed each of the crimes of this case by inciting the conflict with the police directly or indirectly.

However, there are circumstances to consider the circumstances and motives leading to the assembly or demonstration of this case. In addition, considering all of the sentencing conditions stipulated in Article 51 of the Criminal Act, such as the defendants' age, character and conduct, environment, family relation, etc., the sentence like the order shall be determined.

The acquittal portion

Of the facts charged in the instant case, the summary of the violation of the Assembly and Demonstration Act (main facts charged) pursuant to the hosting of the unreported Demonstration on July 24, 2014 against the Defendants is as shown in the facts charged around July 24, 2014. This constitutes a case where there is no evidence to prove the facts charged for the same reason as stated in the foregoing paragraph 3, and thus, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as the Defendants were found guilty of the violation of the Assembly and Demonstration Act due to the act of deviation from the scope of reporting, which is the ancillary facts charged

It is so decided as per Disposition for the above reasons.

Judges or higher-ranking judges

Judges Kang Jae-sung

Judges Choi Du-ho

A person shall be appointed.

A person shall be appointed.