The meaning and scope of an assembly or demonstration requiring a report under Article 6 (1) of the Assembly and Demonstration Act;

An assembly or demonstration requiring a report under Article 6 (1) of the Assembly and Demonstration Act refers to a planned assembly or demonstration to the extent that its organizer, purpose, date, time, place, etc. can be specified in advance, and it is reasonable to interpret that an assembly or demonstration does not constitute a contingent assembly or demonstration for which a prior report is practically impossible without specifying the organizer, purpose, etc. of the assembly or demonstration, and it is reasonable to interpret that the assembly or demonstration does not constitute an assembly or demonstration for which a prior report is in fact impossible. Accordingly, if the Defendants, who arrived at the front of the university, at the university, was prevented from entering the school authorities and the police for the purpose of participating in the national debate by preventing entry into the school and the police, and it was impossible to enter the school as a means to voluntarily dissolve the assembly or demonstration for about 20 minutes prior to the voluntary dissolution, that is, if it was a contingent assembly or demonstration that had been ordinarily personality and behaviored at the time of the assembly or demonstration without a prior report, it cannot be deemed to constitute a crime of non-report.

Article 6 of the Assembly and Demonstration Act

Defendant 1 and six others

Defendants and Prosecutor

Seoul District Court of the first instance (86 High Court Decision 1151, 16269 (Joint Court Decision)

All the judgment below is reversed.

Of the facts charged in the instant case, the charge of violation of the Assembly and Demonstration Act (Assembly and Demonstration Encouragement) against Defendant 1 and the charge of violation of the Assembly and Demonstration Act against the Defendants is not guilty.

Of the facts charged in the instant case, the national mother of the Defendant 4 is acquitted.

1. Grounds for appeal;

A. The grounds for appeal by the prosecutor: The defendants, as the former and incumbent members of the National Assembly or other political persons, tried to join the court in spite of the fact that they sufficiently aware of the political, social, economic situation, and trend of the private teaching institute at the time of the instant case (such as the appearance of the Korean politics, social, economic situation, and the phenomenon of the university students’ systematic large-scale assembly, demonstration, ideological, ideological, or sexual routs, etc.) and the illegal assembly of the so-called pan-national debate, and Defendant 4 urged the external reporters to intervene in domestic political issues by citing false facts to the government and against the external reporters, the determination of the court below's punishment against the defendants is unfair, respectively,.

B. The grounds for appeal by the defendants: (1) there is no evidence to acknowledge the facts charged; (4) on the basis of the misapprehension of the legal principles as to the specification of the facts charged; (4) since the government as stated in the indictment does not specifically specify what kind of the constitutional institution, the court below found the defendants guilty; and (3) misleads the government as provided in Article 104-2 of the Criminal Act, which is a comprehensive concept, as individual constitutional institution. The court below erred in the misapprehension of the legal principles as to Article 254(4) of the Criminal Procedure Act and Article 104-2 of the Criminal Act. (2) The court below erred in the misapprehension of the legal principles as to each of the facts charged of this case (the fact that the defendants's unreported demonstration and the unreported owner, the fact that the defendant's unreported owner, the defendant's 4's National Mono-nation's act was the legitimate act, and the court below, without having adopted or investigated the evidence requested by the defendants, found the defendants guilty as to all of the facts charged and the acts of this case.

2. Determination on the grounds for appeal

Article 14(2), Article 3(2), and Article 4(1)4 of the former Assembly and Demonstration Act (the fact that illegal assemblies and demonstrations against Defendant 1) of the same Act and Article 14(1) of the same Act (the fact that the Defendants are not reported to the Defendants) are not identical to the judgment of the public prosecutor and his defense counsel on the grounds for appeal. Since the above provisions of Article 19(3) and Article 5(1)2 and Article 6(1) of the same Act were amended by Act No. 196 of March 29, 1989, which affected the conclusion of the judgment of the judgment of the court below by the amendment of the revised Acts, the court below's amendment to Article 9 of the Criminal Procedure Act is no more than that of the newly amended Act, since the above provisions of Article 14(2), Article 3(2), and 3(1)4 of the same Act, which were enforced at the time of each of the above acts. It is evident that the revised provisions of the court below's amendment of the Criminal Act would not be effective.

3. Judgment of the court below

A. Summary of each of the facts charged in this case

Defendant 1 is a member of the National Assembly, a new Democratic Party (hereinafter referred to as the “News Party”), a chairman of the Council for the Promotion of Democratization (hereinafter referred to as the “Privates Party”), and Defendant 2 is a member of the National Assembly and a full-time member of the Publics Cooperative who belongs to the News Party, Defendant 3 is a member of the Central Standing Council and the Vice Secretary of the Publics Cooperative, Defendant 4 is a member of the Central Standing Council and the Privates Cooperative, Defendant 5 is a member of the Central Civils Party, Nonindicted 5 is the Director of the Korean Civils Cooperative, Nonindicted 6 is the Director of the Social Organization, and Defendant 7 was a member of the Nationals Cooperative Labor Organization;

(1) On September 5, 1985, Nonindicted 1, the chairman of the 3rd National Investment Association, who was taking part in the name of the investigative agency on the charge of violating the National Security Act, was threatening to kill the people by gathering more than 1,000 university students within the 1,00 students of the Seoul National University, leading the demonstration in his body and by arresting them in advance. They occupy the Central Library of the Korea National University, preparing for each item, etc. on September 6, 1985, while continuing the demonstration within the 70 students, he was in progress without the approval of the school authorities, by dividing them into Defendant 1, 3, 4, 5, and 5, Defendant 4, 4, and 5, Defendant 4, and 5, Defendant 4 and 5, Defendant 4, Defendant 2, and 5, Defendant 4 and 5, Defendant 4, Defendant 2, and 5, Defendant 4, Defendant 2, and the 700 students were in the National Assembly.

(A) Defendant 1, despite the fact that the above illegal assembly was committed by violence against the police officers in the military, etc., even though he knew that it would cause violence, collision, etc. with the police officers in the military, Defendant 1, who appears to be a newspaper in the military at that time, stated that “I do not know that I would like to see, I would like to see, if I would like to see, I would like to see, I would like to see, if I would like to see, I would like to see, and if I would like to see, I would like to see, I would like to see, I would like to see, I would like to see that I would like to leave I would like to go to the police officers in the military, and that I would like to see, I would like to know, because I would like to see, I would like to see, because I would like to see, I would like to see, I would like to see that I would like to see that I would like to go out of our school.

(B) At around 15:30 on the same day, the Defendants shared with Defendant 3’s proposal to sing and talk with the Defendant for demonstration without filing a prescribed report. From around that time to 15:50 on the same day, the Defendants collected 50 persons, including Nonindicted 4, Nonindicted 10, who were gathering at the same place, and citizens, who were in the vicinity of the members of the civil defense association, and 10 on the same day, and carried out the drinking first, and Defendant 3 was "chilled by the violent regime," and "a private teaching institute, a private teaching institute, a private teaching institute, a private teaching institute's self-regulation, a private teaching institute's release of detained students, a freedom of speech, a police violent material." The rest of the Defendants and Nonindicted 4, etc. were sing and sing out, followed by the above order, and the rest of the Defendants, including Defendant 3, Defendant 3, and 4, were singing out, and singinging out, following the following following the order.

(2) On May 7, 1986, Defendant 4 asserted the invalidity of the above lease agreement by citing the fact that the contractor of the public-private partnership and the fact that it belongs to the purpose of the office's lease agreement while the public-private partnership tried to move the office to three-story buildings located in Jongno-gu Seoul, Jongno-gu, 151-8, the office was not opened, and the owner of the building did not use the office's office's office's office's office's lease agreement, the contractor of the public-private partnership, and rejected the occupancy of the public-private partnership. At around 15:20 on the same day, the above situation was collected from the third floor of the neighboring building in the above 15:20th day, "T.V.)" against the non-resident under the name of the government of the Republic of Korea, "the present government interferes with the occupancy of the office's public-private partnership by pressure on the owner and the user side of the building, thereby harming the foreign government's name or distribution of the report.

B. Defendant 1’s judgment on Defendant 1’s inciting the above assembly or demonstration to the same defendant was made on the charges of inciting the above assembly or demonstration, with the exception of the part of the legal evaluation at the end of the facts charged, until the prosecution had the prosecution held a public forum on the day of the instant case, namely, the fact that the defendant delivered his idea to the participants of the above debate and Nonindicted 6’s relay to the audience of the above debate through three students, but the defendant's above act was generally led to the confession of the above facts, but the defendant did not attend the above debate upon the motion of the organizer, but did not inform him that he would not have the police participate in the above debate, and that Nonindicted 1 would have the participants live in a peaceful way, and in the absence of the above debate, it would be obvious that the participants would directly harm the public safety and order.

그러므로 살피건대, 이 사건 기록에 의하면(특히 원심 제21회 공판조서 중 증인 공소외 1의 진술기재, 서울형사지방법원 85초1118 증거보전기록에 편철되어 있는 공소외 7에 대한 증인신문조서 및 같은 법원 85초1124 증거보전기록에 편철되어 있는 공소외 9, 공소외 8, 공소외 11에 대한 각 증인신문조서의 각 진술기재, 위 피고인 및 공동피고인들의 검찰이래 당심에 이르기까지의 각 진술, 당심증인 공소외 12, 공소외 13의 각 일부진술, 수사기록 2책 중 1권 260면 이하에 편철된 실황조사보고서와 당심에 제출된 "고대 9.5.-6. 교내행사와 관련한 전학련 연합집회" 상황일지의 각 일부기개), 위 피고인은 공동피고인들과 함께 이 사건 당일인 1985.9.6. 고려대학교 대강당에서 개최중인 이른바 범국민 대토론회에 주최측 학생들의 초청을 받고 위 토론회에 참석하기 위하여 고려대학교 정문에 이르렀으나 경찰 및 학교당국의 교문봉쇄, 출입저지로 인하여 그 뜻을 이루지 못하고 또한 국회의원 자격으로서 총장과의 면담요청까지 거부 또는 그 의사전달이 되지 아니하여 2시간 가까운 시간에 걸친 위 대학교에서 출입교섭이 무위로 돌아가 결국 위 토론회장에 들어갈 수 없게 되자 위 토론회 참석자들에게 피고인이 신민당 대표로서 위 토론회에 참석하려고 노력하였다는 점과 마침 피고인이 변호를 맡고 있던 전학련의장 공소외 6의 옥중근황을 전하여 줌으로써 자신과 신민당이 학생들에게 할 수 있는 최소한의 성의를 다하였음을 보여 줄 의도하에 주최측의 학생대표라고 자처하는 공소외 7, 공소외 8, 공소외 9 등을 만나 공소사실 기재와 공소외 6의 근황과 위 피고인이 평소 공소외 6을 접견하면서 나눈 대화에서 느낀 동인의 생각하는 바를 요약하여 전하면서(이하, 공소외 6의 메세지라 한다) 그 전날 분신자살도 불사하겠다고 한 공소외 1이 위험한 행동에 나아가지 않도록 그 신변보호를 부탁하고(다만 그 구체적인 전달내용과 의미에 대하여는 위 피고인은 물론 위 공소외 3인들도 각각 해석을 달리하고 있다), 동인들이 토론회장으로 돌아와서, 토론회 진행자들인 공소외 11(이대 민민탄위원장), 공소외 14(서울대 민민탄위원장) 등을 통하여 위 피고인의 뜻과 공소외 6의 메세지를 전달한 사실, 위 토론회는 당시 정부, 여당에서 입법추진중이던 학원원안정법의 폐지, 국제통화기금(IMF), 국제부흥개발은행(IBRD)의 개최저지, 반민주악법철폐 및 직선제를 포함한 민주헌법쟁취 등을 주제로 하여 전학련, 삼민투에서 주최하고, 신민당 및 민정당의 당직자, 민추협 관계인사 등 사회 각계 각층의 인사들을 초청한 집회로서 사실상 개최장소인 고려대학교 당국과 경찰의 암묵적인 승인 아래(학교당국 또는 관할 경찰서장으로부터의 해산명령도 없었다) 위 대학교 대강당에서 700여명이 참석하여 순수한 토론회로서 평온하게 진행되었고, 실제 위 피고인의 뜻과 공소외 6의 메세지가 토론회 참석자들에게 전달되었을 때 당시 참석자들은 박수와 환호로써 일순 호응하였을 뿐 계속하여 위 토론회는 비교적 진지하고 차분한 분위기아래 진행되어 간 사실, 위 토론회의 주최자들은 처음부터 위 토론회를 평화적으로 진행하기로 하여 그 전날 오후부터는 시위를 자제하였고 또 토론회종료 후 시위로 나아갈 것을 의도하지 아니하여 당시 학생운동에 흔히 사용되던 각목, 화염병 등도 준비하지 아니하였으며 토론회개최 당일에는 외부인사의 참여로 인하여 평화적인 토론회진행에 차질을 초래할까 우려하여 오히려 위 피고인 등으로 하여금 돌아가 줄 것을 요청하였고, 공소외 6의 메세지나 위 피고인의 말 등에 의하여 토론회에 어떤 영향을 주었다거나 위 피고인이 토론회에 참석하여 위 공소사실 기재의 발언을 하였다 하더라도 토론회의 성격이 변질되리라거나 과격화되지는 않았으리라고 진술하고 있으며 위 메세지낭독과 토론회종료 후의 학생들의 시위와는 관계가 없다고 진술하고 있는 사실, 위 토론회 개최장소인 대강당은 정문의 서북방향으로 약 200미터 떨어진 곳에 위치하고 있고 당일에는 13:00경부터 18:00경까지 사이에 수시로 폭우가 쏟아져 강우량이 67mm를 기록하여 토론회 개최장소가 원래 민주광장에서 대강당으로 변경되었으며, 위 대학교 주변은 서울시경 기동대 16개 중대병력과 성북경찰서 사복경찰관 100여명이 포진, 경비하고 있을 뿐만 아니라 정문 가운데 중앙문과 좌측쪽 문은 닫아 걸고 우측쪽 문만 열어 놓고 동교학생만 출입을 허용하고 있었던 사실, 위 피고인 및 공동피고인들은 아래에서 보는 바와 같이 같은 날 15:30경 출입저지에 대한 항의조로 위 정문 앞에서 억수같은 비를 맞아가며 약 20분간 구호를 외치고 애국가 등 노래를 제창하고 만세삼창을 한 다음 15:50경 현장을 떠난 사실, 한편 같은 날 17:45경 토론회를 마친 학생 1,000명이 스크럼

In 18:05, Non-Indicted 1 was involved in the police, and Non-Indicted 1 was involved in the police at around 18:05, it is recognized that the two serious diseases of the police were put into school and dissolved in around 18:15, while Non-Indicted 1 was involved in the police.

In light of the above facts, since the above citizen debate was conducted in a peaceful atmosphere without being scheduled to move back after the fact, the above defendant could not be predicted that the above debate would clearly pose a threat to public safety and order by means of collective assault, threat, damage, fire prevention, etc. (hereinafter referred to as "prohibited assembly and demonstration"), and due to his own speech and behavior, it cannot be concluded that the above defendant had a criminal intent to instigate the above defendant, since the above debate would have developed into an assembly or demonstration with the above contents, or would have attempted to convert the above debate into the assembly or demonstration, or even if do not do so, it is difficult to conclude that the above defendant had a criminal intention to commit the above behavior. The contents of the defendant's speech and behavior delivered by the above defendant to the participants of the debate through student representatives could not be present in the debate as a measure to prohibit entry, and since it was merely a summary of Nonindicted 6's thoughts that the above defendant's behavior was prohibited in the process of meeting with his defense counsel, it is not recognized that the above defendant's behavior had already been committed after the above interview and the present situation.

Thus, at the time of the above-mentioned debate, there is a present and obvious danger as to the public safety and order under Article 1 (1) 2 of the above Act, or on the premise that the above-mentioned assembly or demonstration was instigated, the facts charged constitute the time when there is no proof of criminal facts, and thus, the above defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

C. Determination as to the Defendants’ failure to report the demonstration

According to the records of this case and the consistent statements made by the Defendants by the prosecution to the past trial, the facts of the demonstration are sufficiently recognized by the Defendants, such as the time and time indicated in the facts charged, the time and place of the accusation with other public-private partnerships, and the presentation of singing, and the formation of singing at the time and place of the accusation in a timely manner.

However, under the above law, the defendants' above demonstration requires prior approval of the demonstration or demonstration, and the person who intends to hold an outdoor assembly or demonstration shall file a report stating its purpose, date and time (including required hours), place, organizer, contact manager, address, occupation, and system of order keepers, organization scheduled to participate in the demonstration and the number of persons to participate in the demonstration and method of demonstration (including progress and summary thereof). Article 6 (1) of the same Act provides that those who hold an assembly or demonstration in violation of the above provision shall be punished by imprisonment for not more than two years or by a fine not exceeding two million won (Article 19 (2) of the same Act); Article 21 (1) of the same Act or Article 21 (2) of the same Act provides that those who hold an assembly or demonstration under their own responsibility or those who hold an assembly or demonstration shall be punished by the organizer of the assembly or demonstration, and Article 16 (1) of the same Act provides that the freedom of assembly or demonstration and the right of the organizer of the assembly shall not be restricted by the Act and Article 17 (2) of the same Act.

However, according to the evidence cited above and the records of this case, the defendants were unable to voluntarily attend the discussions of this case on September 6, 1985 due to their demand or personal interest. The defendants were to arrive in the front of the National University at around 13:45 on the same day to attend the discussions of this case, but they were unable to enter the school and to enter the school due to the prohibition of entry into and exit from the school authorities and police, as seen earlier, as the above measures prohibiting entry into and exit from the school and police, and they were unable to be taken into the school. Despite the current social status of the members of the National Assembly, the defendants were to have tried to attend the discussions of this case through various ways such as the president's request for an interview with the police authorities during the short time, but no more than 15:30 on the same day, and the Defendants were to have been released from the police authorities and the police authorities at the time of their voluntary dispersion, and thus, they were generally aware of the facts that the police authorities and police authorities did not open to the public.

Therefore, since the facts charged as to the failure of the report of this case against the Defendants constitute a case where there is no proof of facts constituting the crime, each of the defendants is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

D. Determination as to Defendant 4’s national mother-to-state reading

Article 104-2 of the Criminal Act (No. 2745, Mar. 25, 1975) is clear that the crime of the State conspiracy under Article 104-2 was repealed by Act No. 4040, Dec. 31, 1988 after the crime of this case. Thus, the above defendant is acquitted pursuant to Article 326-4 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges Jeon Soo-dae (Presiding Judge)