2017Do14829 General traffic obstruction

1. A;

2. B

3. C.

Defendants

Law Firm Inn (for the defendant)

Attorney Jeong Jong-young, Kim Tae-tae, Attorneys Park Jong-young, Park Ho-ho, Park Il-ho, Park Jong-ho, Kim Jong-chul

Current, Song Young-gu, Ta Young-gu, Ta Young-gu, Taxization, Goak-gu, Kim Jong-hee, Kang Young-hee,

Newly accepted, delayed, newborns, Chon-ju, Chon-ju, Lee Young-young, Cho Young-gu, Cho Young-chul

Civil, Kim Jin-Jin, Cho Jin, Kim Jin-Jin, Kim Jong-Jin, and Lee Jong-Ja

Suwon District Court Decision 2016No7856 Decided August 25, 2017

January 10, 2019

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

The grounds of appeal are examined.

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

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

2. A. The summary of the facts charged in this case is as follows.

(1) Defendant C is a full-time union member working as the head of the ENo-F branch of D's C's C', Defendant B is a person serving in the F's external co-operation chief, and Defendant A is a professor of G University.

(2) At around 15:00 of the R date, the Defendants, along with the members of the F Branch's Embane conference around the hotel located in the Jung-gu Seoul Central Office, set up in front of the police wall located in the front of the Tae-gu Seoul Central Office to 18:50, obstructed the passage of the road along with the participants of the assembly at the front of the police wall installed in front of the Tae-gu Seoul Central Office by the end of 18:50.

B. Based on the circumstances stated in its reasoning, the court below affirmed the judgment of the court of first instance which recognized the Defendants’ establishment of the crime of interference with general traffic, on the ground that the Defendants had committed a direct act of causing interference with traffic, which considerably exceeded the scope of the report by occupying the lanes prior to the type of assembly with the participants in the assembly in a situation where the Defendants’ combination of doctors was conducted in a successive, secret, and secret manner with other participants in the assembly.

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

(1) D, on November 12, 2015, reported by the Seoul Local Police Agency that D will take advantage of the entire delivery of 16:00 to 20:00 of the date RR 16:0 to 20:00, the Seoul Local Police Agency reported that D will take advantage of the entire delivery of the 'Seoul Squinized Squagle Dogwon' to the Sejong-ro Government Office, but the Seoul Local Police Agency notified that D would take advantage of the said D's order.

(2) However, there is no evidence to deem that the Defendants had been aware of the scope and conditions of the assembly and demonstration in advance.

(3) At the time of the Defendants’ consolidation with the demonstration team, the police had already installed a walls and prevented the traffic of the fleet.

(4) The Defendants appear to have participated simply in the instant assembly and demonstration, and there is no circumstance to deem that there was a functional control over the act through the intrinsic contribution to the assessment that the Defendants had committed a direct act that may cause traffic obstruction by performing a leading role in the assembly and demonstration, or that there was no functional control over the act.

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

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

Justices Noh Jeong-hee

Justices Park Sang-ok

Justices Cho Jae-sik in charge