A. Violation of the Punishment of Violences, etc. Act (joint residence intrusion)

(b) General traffic obstruction;

(c) Violation of the Punishment of Violences, etc. Act (joint injury);

(d) Damage to property;

(e) Violation of the Assembly and Demonstration Act;

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

2. B.I.

Defendants

Seoul Central District Court Decision 2013No629, 2014No24 decided September 25, 2014 (Consolidation)

Judgment

on 12, 2015 10

The part of the judgment below against Defendant A is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

Defendant B’s appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal on the Defendants’ violation of the Punishment of Violences, etc. Act (joint injury)

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, the lower court is justifiable to have found the Defendants guilty of violating the Punishment of Violences, etc. Act (joint injury) among the facts charged in the instant case on the grounds stated in its reasoning. In so doing, contrary to the allegations in the grounds of appeal, the lower court did not err by failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of logic and experience and exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on the crime of non-compliance with an intention.

2. As to Defendant A’s remaining grounds of appeal

A. As to the ground of appeal on April 30, 2009 as to the damage to property and the obstruction of the general traffic by oneself

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court, based on its reasoning, destroyed and damaged property among the instant facts charged against Defendant A and 209.

4. The decision that found the defendant guilty of obstruction of general traffic on 30.30 is justifiable, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on obstruction of general traffic, or omitting judgment on commercial concurrence, which affected the conclusion of the judgment.

B. As to the ground of appeal on the violation of the Assembly and Demonstration Act due to the non-compliance with the dispersion order

According to Articles 24 subparag. 5 and 20(2) and (1) of the Assembly and Demonstration Act, the head of the competent police authority, etc. may demand voluntary dispersion with respect to an assembly or demonstration falling under any of the subparagraphs of Article 20(1) within a considerable period of time, and if such demand is not complied with, he/she may order dispersion. When such dispersion is ordered, all participants shall be dissolved without delay, and those violating such order shall be subject to criminal punishment. Meanwhile, 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 relevant provisions, the dispersion of an assembly or demonstration is an exercise of public authority significantly restricting the freedom of assembly or demonstration, and the requirements and procedure thereof must be strictly interpreted, and the procedure and method of dispersion order shall be 105 years or more of age 20 and the head of the competent police authority shall request voluntary dispersion order, etc. (see Article 20(1)20).

However, even after examining the evidence and records duly adopted by the lower court, there is no evidence to ascertain whether Defendant A was ordered to dissolve through the procedure under Article 17 of the Enforcement Decree of the Assembly and Demonstration Act, such as whether it constitutes an assembly or demonstration without reporting under Article 6(1) of the Assembly and Demonstration Act, and the head of the competent police authority’s specific notification of the reason for dissolution.

Nevertheless, the lower court found Defendant A guilty of violating the Act due to the failure to comply with the dispersion order among the facts charged in the instant case. In so doing, the lower court erred by misapprehending the legal doctrine regarding dispersion order, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Scope of reversal

Of the judgment of the court below, the part on the violation of the Act due to the violation of the dispersion order against Defendant A should be reversed. Since the court below deemed this part and the remaining criminal facts against Defendant A as concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced to a single punishment, the part on Defendant A among the judgment below should be reversed in its entirety.

4. Conclusion

Therefore, the part of the lower judgment against Defendant A is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant B’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de

Note Justice Lee Sang-hoon

Justices Kim Chang-suk

Justices Park Sang-ok