[1] The case where a general traffic obstruction is established even when an assembly or demonstration, which has completed a lawful report pursuant to the Assembly and Demonstration Act, and the requirements for a participant to constitute a general traffic obstruction

[2] Requirements for asking the participants of an outdoor assembly or demonstration who did not report in advance under the Assembly and Demonstration Act to the charge of non-compliance with the order of dispersion / In such case, whether the intent of the demand for voluntary dispersion should be clearly included in the order of dispersion (affirmative)

[1] Articles 30 and 185 of the Criminal Act; Articles 6 (1) and 12 of the Assembly and Demonstration Act / [2] Article 21 of the Constitution of the Republic of Korea; Article 13 of the Criminal Act; Articles 6 (1) and 20 (2) and (3) and 24 subparagraph 5 of the Assembly and Demonstration Act; Article 17 of the Enforcement Decree of the Assembly and Demonstration Act; Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2006Do755 Decided November 13, 2008 (Gong2008Ha, 1695), Supreme Court Decision 2016Do4921 Decided November 10, 2016, Supreme Court Decision 2017Do16846 Decided February 28, 2018 / [2] Supreme Court Decision 2005Do3491 Decided September 28, 2005, Supreme Court Decision 2010Do15797 Decided December 22, 2017, Supreme Court Decision 2015Do80555 Decided December 22, 2017

Defendant

Prosecutor

Law Firm Korea, Attorney Kim Han-tae

Seoul Central District Court Decision 2017No1433 Decided October 26, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the part concerning general traffic obstruction

A. Even if an assembly or demonstration, which has completed lawful reports pursuant to the Assembly and Demonstration Act (hereinafter “Act”), is deemed to constitute a general traffic obstruction under Article 185 of the Criminal Act in a case where it considerably deviates from the original reported scope, or makes it impossible or considerably difficult to pass by interfering with road traffic by seriously violating the conditions under Article 12 of the Act (see Supreme Court Decision 2006Do755, Nov. 13, 2008, etc.).

However, it does not necessarily constitute a crime of general traffic obstruction to all participants. In fact, it constitutes a crime of general traffic obstruction where a participant is able to commit a direct act causing traffic obstruction by significantly exceeding the reported scope or by participating in a serious violation of the terms and conditions, or the participant’s circumstances or degree of involvement (see, e.g., Supreme Court Decisions 2016Do4921, Nov. 10, 2016; 2017Do16846, Feb. 28, 2018).

B. On the grounds indicated in its reasoning, the lower court acquitted the Defendant on this part of the facts charged on the ground that there was no proof of crime. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the establishment of general traffic obstruction and joint principal offense, contrary to what is alleged in the grounds of appeal.

2. As to the violation of the Assembly and Demonstration Act

A. According to Articles 24 subparag. 5, 20(2), 20(1)2, and 6(1) of the Assembly and Demonstration Act, the head of the competent police authority, etc. may demand voluntary dispersion of an outdoor assembly or demonstration held without filing a prior report within a considerable period of time, and if such demand is not complied with, all participants shall immediately dissolve the assembly or demonstration, and if such dispersion order is ordered, the offender shall be subject to criminal punishment. Meanwhile, with the delegation of Article 20(3) of the Assembly and Demonstration Act, Article 17 of the Enforcement Decree of the Assembly and Demonstration Act provides for specific matters necessary for voluntary dispersion request and notification of dispersion order. In light of the contents and purport of the aforementioned relevant provisions, the requirements and procedure for dispersion of an assembly or demonstration is an exercise of public authority significantly restricting the freedom of assembly or demonstration, and the method of strict interpretation, the head of the competent police authority, etc. shall also demand voluntary dispersion order and dispersion order to the participants in an outdoor assembly or demonstration within a considerable period of time. 205 years of age 17, etc.

A dispersion order imposes the duty of voluntary dispersion on the participants of a demonstration that does not comply with the demand for voluntary dispersion. As such, the purport of the demand for voluntary dispersion ought to be clearly included. Whether such dispersion order was issued ought to be clearly included in the purport of the demand for voluntary dispersion. Whether there was a demand for closure declaration or demand for voluntary dispersion following the progress of demonstration; the language and content of police broadcasts; where visual media, such as electronic displays at the time of broadcasting, including the contents and location of the indication; and the interval and frequency of broadcasting, etc., if it is sufficiently known that the dispersion order was issued from the perspective of the average person in society (see Supreme Court Decision 2015Do8055, Dec. 22

In addition, since such a demand for voluntary dispersion and the object of the dispersion are themselves “an assembly or demonstration”, the method of voluntary dispersion and the method of order for dispersion shall be conducted by notifying and delivering to the whole group or group of participants in the assembly or demonstration. Whether there was “three or more dispersion orders” as the requirement to inquire into the crime liability for refusing the dispersion order should be determined based on the number of times the participants in the assembly or demonstration lawfully ordered dispersion in the above manner.

On the other hand, this crime is an intentional crime established when it is not dissolved even though it is aware that there was three or more dispersion orders regarding participating assemblies or demonstrations.

B. On the grounds indicated in its reasoning, the lower court acquitted the Defendant on this part of the facts charged on the ground that there was no proof of crime. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court partially inappropriate part of the reasoning of the lower judgment, but its conclusion is acceptable. Therefore, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)