[1] In a case where the nature or purport of an outdoor assembly held without filing a prior report constitutes an assembly as provided in Article 15 of the Assembly and Demonstration Act, whether it may be punished as an unreported outdoor assembly (negative), and the standard for determining which assembly constitutes an assembly as provided in Article 15 of the same Act

[2] In a case where the Defendant was indicted for holding a non-reported outdoor assembly under the Act on Assembly and Demonstration by carrying out a gathering to reject a report on the establishment of a union in a very rough and disorderly manner at a place where ten or more members of a specific Internet camera and many unspecified citizens pass, the case affirming the judgment below convicting the Defendant on the ground that in light of all the circumstances, the above gathering constitutes an outdoor assembly under Article 2 subparag. 1 of the same Act and constitutes an outdoor assembly under Article 2 subparag. 1 of the same Act, and thus, constitutes an outdoor assembly under Article 2 subparag. 1 of the same Act

[1] The purpose of Article 15 of the Assembly and Demonstration Act, along with the reporting system on an outdoor assembly, is to protect legitimate outdoor assembly by grasping the nature, size, etc. of the outdoor assembly in advance, and to provide an administrative agency with specific information on the outdoor assembly so that it can be provided in advance to prevent infringement of other persons’ fundamental rights and to maintain public safety and order. On the other hand, in the case of an assembly on learning, art, sports, religion, ceremony, friendship, entertainment, funeral, marriage, funeral and ancestor worship, funeral and ancestor worship, it is highly dangerous that other persons’ fundamental rights or public safety and order are infringed. Therefore, if the nature or purpose of an 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. Whether an assembly constitutes an assembly as provided in Article 15 of the Assembly and Demonstration Act ought to be determined by comprehensively taking into account all the circumstances, such as the main purpose, date, place, number of participants, method, mode of participants, act of participants, duration, etc.

[2] In a case where the Defendant was indicted for holding an unreported outdoor assembly under the Assembly and Demonstration Act (hereinafter “Act”) by holding a gathering against the return of a report on establishment of a union in a very rough and disorderly manner with ten members of a specific Internet camera, the case affirming the judgment below convicting the Defendant on the ground that in light of all the circumstances, such as the main purpose, date, time, place, method, number of participants, the mode of conduct of participants, the duration of the assembly and demonstration, and the duration of the assembly and demonstration, it cannot be deemed that the application of the duty to report under Article 15 of the Act is excluded, and in substance, it constitutes an assembly on recreation or art, etc., which is held under the intention to externally understand the government’s youth unemployment policy, and thus, it constitutes an outdoor assembly under Article 2 subparag. 1 of the Act, which is held under the intention to externally understand the government’s youth unemployment policy, and thus, constitutes the subject of prior notification under Article 6(1)1 of the Act.

[1] Article 2 subparag. 1, Articles 6(1), 15, and 22(2) of the Assembly and Demonstration Act / [2] Articles 2 subparag. 1, 6(1), 15, and 22(2) of the Assembly and Demonstration Act

[1] Supreme Court Decision 2011Do6294 Decided April 26, 2012

Defendant

Defendant

Law Firm Lee & Lee, Attorney Park Jong-soo

Seoul Central District Court Decision 2010No4341 Decided January 19, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. On the first ground for appeal

Article 6(1) of the Assembly and Demonstration Act provides that “An assembly which is the object of guarantee and regulation under the Assembly and Demonstration Act (hereinafter “Act”) shall be “temporary gathering at a certain place under the purpose of externally expressing an opinion by a specific or unspecified number of people by forming a common opinion” (see, e.g., Supreme Court Decisions 2007Do1649, Jul. 9, 2009; 2010Do15797, Dec. 22, 2011).” Article 6(1) of the Assembly and Demonstration Act imposes a duty to report in advance on the organizer of an outdoor assembly; and Article 15 of the Act excludes the application of the Act to assemblies concerning learning, art, sports, religion, friendship, funeral, funeral and ancestor worship, and national events. In addition, the purport of excluding the application of the Assembly and Demonstration Act is to prevent assembly or public peace and order from infringing upon fundamental rights of others in advance by understanding the nature and scale of the outdoor assembly in advance, and to ensure the public peace and order of assembly and order.

According to the facts and records duly established by the first instance judgment and the lower judgment, the Defendant: (a) as ○○○○○○○○○ website, which has up to 1,300 members; (b) urged members to participate in the instant group by informing the members of the fact that the group was held in the column of the above carpets; (c) the contents of the instant group expressed through the above public notice; (d) the instant group’s gathering in the form of a very rough or disorderly manner to spread a gathering about the return of the report on the establishment of ○○○○○○’s labor union to the Ministry of Labor; and (e) from 13:00 to 13:30; and (e) the Defendant had ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ branch of the instant group.

In full view of the above legal principles and the above facts, although the group of this case was widely carried out in the form of entertainment, which is a form of performing arts, in light of the overall circumstances such as its main purpose, date, time, place, method, number of participants, mode of conduct by participants, details of progress, required time, etc., it cannot be viewed as an assembly on entertainment or art, which is exempted from the obligation to report under Article 15 of the Assembly and Demonstration Act. In substance, it constitutes an outdoor assembly as defined in Article 2 subparagraph 1 of the Assembly and Demonstration Act, which is held under the intention to externally understand the political and social relief of the government's assertion, such as ascertaining the government's youth unemployment problem policy, and thus, it constitutes an outdoor assembly as defined in Article 2 subparagraph 1 of the Assembly and Demonstration Act, and thus, it shall be subject to prior reporting under Article

The judgment below is just and there is no error in the misapprehension of legal principles as to the concept of outdoor assembly subject to report under the Assembly and Demonstration Act, as otherwise alleged in the ground of appeal.

2. On the second and third grounds for appeal

It cannot be deemed that the competent police station is aware of the fact that an outdoor assembly will be held, that the assembly is peacefully held, or that the opinion that the assembly would be presented through the assembly is justifiable and exempt from the duty to report under the Assembly and Demonstration Act. Thus, an outdoor assembly held without submitting a prescribed report cannot be deemed a justifiable act that does not go against the social norms (see, e.g., Supreme Court Decisions 90Do870, Aug. 14, 1990; 2008Do9049, Feb. 25, 2010).

In light of the above legal principles and facts acknowledged by the court below, the reason alleged in the ground of appeal does not constitute a justifiable act that does not go against social norms or a mistake of law with legitimate reasons.

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to legitimate act or mistake of law as otherwise alleged in the ground of appeal.

3. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)