(영문) 서울중앙지방법원 2017.1.26.선고 2015노2108 판결

However, the execution of the above punishment shall be suspended for one year from the date this judgment became final and conclusive.The general traffic obstruction of the facts charged in this case as of June 9, 2008 and June 21, 2008 shall be acquitted. The prosecutor's appeal concerning the part not guilty among the judgment below shall be dismissed.

The summary of the judgment of innocence against the accused shall be published.

Reasons

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

A) As to the violation of the Assembly and Demonstration Act (hereinafter “Act”), before the Constitutional Court's decision on unconstitutionality of Article 10 of the Act at the time of the instant case, the night outdoor assembly is generally prohibited, and therefore, the procedure for reporting under Article 6 of the Act is observed.

It can be seen that there was an objective circumstance, and the information officer who is residing in each assembly site before the assembly site has been notified of the place, time, etc. of the assembly and consulted with the police officer.

B) As to each general traffic obstruction

Of general traffic obstruction acknowledged by the court below, the part of May 27, 2008, May 30, 2008, June 4, 2008, June 9, 2008, and June 9, 2008, which was found guilty, is merely the partial or concurrently occupied occupation of the road, and thus, it cannot be deemed that there was a situation that makes it considerably difficult for the vehicle to communicate. The part of June 21, 2008, May 31, 2008, June 2, 2008, June 3, 2008, June 6, 2008, June 6, 2008, June 7, 2008, June 2008, 2008, June 21, 2008, and June 21, 2008, it cannot be deemed that there was a causal relation between participants in an assembly due to police or police barriers.

C) The point of obstruction of performance of official duties

The police sent a large number of citizens, including the Defendant, who stop the police bus to resist the non-discriminatory forced conduct of the police, and the Defendant was boomed with the police to stop the police bus in the process, and the Defendant did not use violence against the police officer.

2) Unreasonable sentencing

The sentence of the lower court (ten months of imprisonment, two years of suspended execution) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misunderstanding of legal principles (the part concerning each general traffic obstruction which was acquitted by the original trial)

It is sufficient to recognize that the participants of an assembly violated the Assembly and Demonstration Act by holding an unreported illegal assembly, and that the place has a large traffic demand and a large vehicle traffic flow as the center of Seoul, and even if a part of a lane has been occupied, it can be deemed that a significant obstacle to traffic has been caused to the direction of the proceeding. It is difficult to view it as a temporary point when considering the occupation time, and therefore, it is sufficient to recognize that the passage of a large unit is considerably difficult due to each demonstration on the corresponding date. Nevertheless, the judgment of the court below acquitted the participants of each charge, which affected the conclusion of the judgment, by misunderstanding the facts.

2) Unreasonable sentencing

The sentence of the court below is too unhued and unfair.

2. Determination

A. Judgment on the defendant's assertion

1) As to the violation of each Assembly and Demonstration Act, the Constitutional Court rendered a decision that “any demonstration” in the main text of Article 10 of the Assembly and Demonstration Act (amended by Act No. 8424, May 11, 2007) and the main text of Article 10 of the Assembly and Demonstration Act shall be applied to see, e.g., from sunset to 24 days before the same day, that it violates the Constitution.” The purport of the Constitutional Court's decision is that it goes against the Constitution since it exceeded the necessary degree to punish the ' demonstration' from sunset to 24 days before the same day, and that the Defendant was exempt from the duty to report in advance on the assembly or demonstration from the duty to report in accordance with Article 10 of the Assembly and Demonstration Act, and it cannot be seen that the Defendant was exempt from the duty to report in advance on the assembly or demonstration at the place where the assembly or demonstration was held by the chief of the police station for the purpose of protecting the public safety and order by means of prior notification or consultation with the chief of the police station.

2) As to each general traffic obstruction

A) In full view of the fact that each assembly and demonstration took place without reporting to the chief of the police station, the roads occupied by the participants, including the Defendant, are the center of the city with a high traffic volume, and the timing and place of each assembly and demonstration, such as the number of participants, the total required time from the time of the demonstration to the time of the demonstration, the movement route of the demonstration team and the event, the specific form and conditions of the demonstration at the time of the demonstration, the detailed form and conditions of the road occupation, the road traffic volume and the traffic situation at the time of the demonstration, etc., even if the passage of the vehicle has already been controlled by the police without reporting in advance, it can be sufficiently assessed as a result of the failure of the participants, including the Defendant, to drive a road with a large traffic volume at the time of the demonstration and the passage of the road at the time of the demonstration, which may have been recognized by the evidence duly adopted and investigated by the court below and the trial court.

B) However, in light of the general traffic obstruction as of June 9, 2008, it is insufficient to recognize that the evidence submitted by the prosecutor alone was insufficient to acknowledge that the road traffic has been obstructed or that the traffic flow has been significantly difficult due to the progress of participants in the demonstration at that time, and there is no other evidence to acknowledge otherwise.

In addition, in relation to the general traffic obstruction of June 21, 2008, the summary of this part of the facts charged is that the participants in the assembly occupy the lanes from June 21, 2008 to June 22, 2008, and from June 22, 2008 to June 08:15, the participants interfere with the traffic by occupying the lanes in front of the three-lanes. According to the evidence, the fact that each police wall has been installed in front of the front of the three-lanes of the Gomunmun-gu Span and the front of the three-dimensionals of the same day before around 20:30 of the same day is recognized. Accordingly, it is difficult to conclude that the traffic obstacle had already been interrupted by the traffic obstacle of the police, and that the traffic obstacle was eventually impossible for participants in the assembly.

Therefore, this part of the defendant's argument is justified.

3) As to the crime of obstruction of performance of official duties, the police officer’s arrest of the Defendant at the time of the instant case stated in the court of the court below that “the Defendant observed that it was intending to prevent the escort bus and enter the police into the bus,” and there is no circumstance to suspect the credibility of the above DW’s statement, and even according to the DY’s legal statement of the court below at the time, it is acknowledged that the participants in assemblies, including the Defendant, do not obstruct the police bus in which the participants of the assembly, including the Defendant, are on board. Considering the above circumstances, it can be sufficiently recognized that the Defendant interfered with the police officer’s performance of official duties. However, it is determined that the Defendant’s smuggling was conducted in the process of arresting the police officer after the above obstruction of performance of official duties, and thus, this part of the crime was partially revised and recognized.

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

As a result of the review of records, the court below found the defendant not guilty on the ground that the evidence submitted by the prosecutor concerning the obstruction of general traffic as of June 11, 2008, June 12, 2008, June 16, 2008, June 17, 2008, June 18, 2008, June 19, 2008, June 19, 2008, June 23, 2008, June 23, 2008, and June 24, 2008 cannot be deemed to have been impossible or significantly difficult due to the progress of the assembly participants, and there is no error of law by misunderstanding facts or by misunderstanding legal principles concerning obstruction of general traffic, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the defendant's appeal concerning the guilty part of the judgment of the court below is partly reasonable. Thus, the conviction part of the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining both parties' assertion of unfair sentencing, and it is again decided as follows. The prosecutor's appeal against the acquittal part of the judgment of the court below is without merit and it is dismissed

【Discretionary Judgment】

The summary of the facts constituting a crime and evidence. The summary of the facts constituting a crime and the evidence recognized by this court is as follows: the last sentence of Article 29 of the facts constituting a crime in the judgment below and the last sentence of Article 41 of the Criminal Procedure Act are as follows: the defendant held an outdoor assembly in collusion with S, AD, etc.; the defendant's 'DW' of the 43th 10th 'DW' is as a police officer; the 'DW' of the 43th 'DW' is as the 'DW'; the 13th 'DW' is deleted as the 'DW'; and the 45th 'mains of the evidence' is as stated in the corresponding column of the judgment below, except for the deletion of the 'DW' as stated in the 3.6th

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 22(2) and 6(1) of the Assembly and Demonstration Act, Article 30 of the Criminal Act, Articles 185 and 30 of the Criminal Act, Articles 136(1) and 30 of the Criminal Act, Articles 136(1) and 30 of the Criminal Act, and the choice of imprisonment, respectively.

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

The sentence shall be determined as ordered in consideration of the following: (a) there is no criminal history other than the fact that the suspension of indictment was imposed on the violation of the Assembly and Demonstration Act prior to each of the crimes in this case; (b) the part of the violation of the Assembly and Demonstration Act was prohibited at night; (c) there are circumstances to consider the circumstances; (d) the current peaceful assembly and demonstration culture appears to have been endeavoring to create a peaceful assembly and demonstration culture; (e) the court below acquitted part of the general traffic obstruction committed by the court below; and (e) the defendant's status in each of the crimes in this case

Parts of innocence

1. Summary of the facts charged

A. On June 9, 2008, H gathered from around 19:05 to around 20:15 on June 9, 2008, up to her gathering from around 19:05 to 20:5, she installed a clock card, stage vehicle, etc. to her PP government trial by a candlelight agency, and approximately 2,500 persons, such as A, S, and AV, installed approximately 50 flagpole, 'illegal parking, announcement withdrawal' Stick, approximately 1,00 flick, flicket, candlelight, etc. in preparation for the CD society, while proceeding with the "CT Committee chief CU and participants' freedom of speaking, withdrawal of the Minister public notice, AP regime, the Commissioner General of the National Police Agency, the police police, etc."

From 20:25 to 21:40 after the end of the assembly, approximately 2,50 participants in the assembly moved around AV, which reads "AP impeachment, 6.10, and N," with a broadcast vehicle, along with a line, in which "P impeachment, 6.10, and NA," and took part in sublime, YTN broadcasting station in front of the KTN broadcasting station, the Southern main market, the Bank of Korea route, the route 1-ro, paper 1-ro, paper 1-ro, paper 1-ro, and paper 3-roin, and proposed relief, such as "public notice withdrawal, AP regime discount, detention of the Commissioner General of the National Police Agency," and "bolr for violent police."

Accordingly, in collusion with S and Demonstration participants, the Defendant interfered with traffic flow, such as solar roads, paper roads, Eul roads, and the vicinity of Sejong-ro for about 15 minutes.

나. 2008. 6. 21. 일반교통방해 H는 2008. 6. 21. 19:25경부터 20:50경까지 서울 중구 CL 소재 CM 앞 전 차로에서 '1박 2일 콘서트 힘내자 촛불아, 롯데월드가 중요하냐 국방이 중요하냐 AP 군통수권 반납하라'고 기재된 플래카드 4개, 무대차량 등을 설치한 후 피고인, A, AD, AV, AK 등 약 9,000명이 깃발 150개, '국민심판 AP, AP OUT', '30개월 꼼수 안 넘어가 뻥이야' 등 피켓 약 5,000개, '또 다른 사기극, AP 퇴진, Q&A;, 맞불' 등 유인물 약 2,000매를 준비하여 참석한 가운데, S의 "H 입장은 전면 재협상 외 방법이 없다는 결론이다. 내일까지 48시간 집중투쟁 및 24, 27일에 AN에서 토론회를 개최할 예정이다. 다음 주에도 촛불집회는 계속 진행될 것이다."라는 발언 및 사회로 Q, BN의 발언, 집회 참가자들의 자유발언, "추가협상 국민기만, AP은 물러가라, 촛불저항은 계속된다. 오늘 저녁 AN으로 민주시민 함께 해요, 조선일보 물러가라, 언론자유 보장하라" 등의 구호제창 등으로 'AJ 촛불집회'를 진행하였다.

After the end of the assembly, approximately 9,00 participants, including the Defendant, occupy AV as the main lane from June 21 to June 21, 200, and from June 21, 21:30, 31:00, 4:00 :00 :0 :00 :0 :00 :00 :0 :00 :0 :00 :00 :00 :00 :00 :00 :

AP continued to occupy approximately 7,50 persons from around 21:30 to around 23:20 of the participants in the assembly, and loaded sand in front of the police bus that was installed with a tea wall according to the AV’s inciting AV, and "AP created relief, such as Water Ba, the Commissioner General of the National Police Agency, and violent police machinery". In this case, AV made a statement, "AP was listed on the AP on the AV vehicle," such as "IP signed on the AV vehicle, and the police stamp affixed her seal on the BV bus, so all the members who have find the flag, etc. in front of the AV."

After that, on June 21, 200, about 7,000 participants from around 23:20 on June 21, 2008 to around 08:15 on June 22, 2008, the following day were occupied by the lanes prior to Sejong, and as a result, inciting S, “AP” created relief, such as “IP”, and integrated the police bus installed with the tea wall with the wire line, and damaged the police bus by breaking booming lick and wire network. Accordingly, in collusion with S and demonstration participants, the Defendant interfered with traffic flow, such as solar and 25 minutes during about 11 minutes and over the 11-day period.

2. Determination

Each of the facts charged in this part constitutes a case where there is no proof of criminal facts as seen in the above 2. A. 2. B., and thus, it is so decided as per Disposition by the assent of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence against the defendant under Article 58(2) of the Criminal Act.

Judges

The presiding judge shall be dedicated to judges.

Judges Ho Sung-ho

Judges Gyeong-dong

Note tin

1) The Defendant’s defense counsel is legitimate 24 hours in the case of an assembly that begins on or after 24: (1) the date from April 6, 2016 and ends on or after 24:

Although previous assemblies and indivisible continuity have been separated, the court below held an unreported outdoor assembly on the part after 24 cc.

2. In a case where an organization hosts an assembly or demonstration, the representative shall be appointed as the organizer.

Defendant, other than the representative, cannot be held liable for the organizer on the ground that he was not the representative of an organization that is not the organizer.

B alleged that there was an error of finding guilty by deeming B as the organizer. However, each of the above arguments is new after the date on which the appellate brief was not timely filed.

It cannot be viewed as a legitimate ground for appeal due to a favorable assertion. 1) Even ex officio, the lower court’s judgment is Articles 22(2) and 6(1) of the Act.

The court found the defendant guilty of 'unreported outdoor assembly' and found 24 cc as asserted by the defense counsel.

Article 22 Section 2 of the Assembly and Demonstration Act, which does not recognize only the subsequent parts guilty, and is based on punishment for non-reported outdoor assembly or demonstration.

The Constitutional Court Decision 2010Hun-Ga2, 2012Hun-Ga13 (merged) cannot be deemed to have had effect on the Constitutional Court's decision of unconstitutionality until Paragraph 1 and Paragraph 1 of Article 6.

The judgment of the court below is not erroneous in the misunderstanding of legal principles, which affected the conclusion of the judgment.

A person who solicits to implement such act through functional control based on the intention of joint processing and the intention of joint processing shall not file a report on the other accomplices.

Inasmuch as an act of holding an outdoor assembly or demonstration cannot be exempt from the criminal liability as a co-principal (Supreme Court Decision 2009Do449 Decided September 29, 201).

2821) The defendant, even though he is not the representative of the organization, is not the representative of the organization but the assembly leader who is not the representative of the organization under Articles 22(2) and 6(1) of the Assembly

The same offense can be established. Therefore, the defense counsel's above assertion is without merit.

심급 사건

-서울중앙지방법원 2015.5.15.선고 2008고단3949

서울중앙지방법원 2017.1.26.선고 2015노2108

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