[1] Protection of the legal interest of and punishment for general traffic obstruction / Whether general traffic obstruction is established in a case where an assembly or demonstration on the road entails traffic obstruction (affirmative in principle)

[2] In a case where an assembly or demonstration, which has completed a lawful report pursuant to the Assembly and Demonstration Act, considerably exceeded the scope of the initial report, or where the passage of the assembly or demonstration is impossible or considerably difficult by obstructing road traffic by seriously violating the conditions under Article 12 of the same Act, whether the assembly or demonstration constitutes a general traffic obstruction (affirmative), and the elements for establishing a general traffic obstruction by a participant (affirmative)

[3] The elements to establish a general traffic obstruction in a case where the legal nature of the general traffic obstruction and the timing and time of completion/report considerably exceeded the bounds of the general traffic obstruction, or the participation in an assembly causing traffic obstruction by seriously violating the conditions under Article 12 of the Assembly and Demonstration Act, but the traffic obstruction had already been obstructed by other participants at the time of participation, and the traffic flow had already been obstructed by other participants

[1] Article 21 of the Constitution, Article 185 of the Criminal Act / [2] Articles 30 and 185 of the Criminal Act, Articles 6 and 12 of the Assembly and Demonstration Act / [3] Articles 30 and 185 of the Criminal Act, Articles 6 and 12 of the Assembly and Demonstration Act

[1] [1] [3] Supreme Court Decision 2017Do11408 Decided January 24, 2018 (Gong2018Sang, 539) / [1] Supreme Court Decision 2003Do4485 Decided October 10, 2003, Supreme Court Decision 2014Do1926 Decided July 10, 2014 / [2] Supreme Court Decision 2006Do755 Decided November 13, 2008 (Gong2008Ha, 1695), Supreme Court Decision 2016Do4921 Decided November 10, 2016 / [3] Supreme Court Decision 204Do7545 Decided October 28, 2005, Supreme Court Decision 2006Do64664 decided April 26, 2016

Defendant

Prosecutor

Law Firm Han, Attorneys Park Do-young et al.

Suwon District Court Decision 2017No3798 decided September 22, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 185 of the Criminal Act provides, “A person who damages, destroys, or destroys a road, waterway, or bridge, or obstructs traffic by other means shall be punished by imprisonment with prison labor for not more than ten years, or by a fine not exceeding 15 million won.” The purpose of general traffic obstruction is to punish not only a crime under the protection of the law of traffic safety for the general public, which damages or makes it impossible to pass through a road, etc., but also any act that makes it impossible or remarkably difficult to pass through by interfering with traffic by other means (see Supreme Court Decision 2003Do4485, Oct. 10, 200).

The freedom of assembly and demonstration is the fundamental right of the people guaranteed by the Constitution, and in applying the general traffic obstruction under the Criminal Act to the participants in an assembly and demonstration, there may arise an unreasonable restriction on the freedom of assembly and demonstration. However, the general traffic obstruction may be established, barring any special circumstances, in light of the fact that the general traffic obstruction method is comprehensively stipulated as above, and that when an assembly and demonstration are conducted on the road, there is a risk of direct infringement on the traffic safety of the general public in the event of carrying out an assembly and demonstration on the road.

Even if an assembly or demonstration which has completed lawful reports pursuant to the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”), where the scope of the initial report is considerably exceeded, or where the passage is impossible or considerably difficult by interfering with road traffic due to serious violation of the conditions under Article 12 of the Assembly and Demonstration Act, general traffic obstruction under Article 185 of the Criminal Act is established (see, e.g., Supreme Court Decision 2006Do755, Nov. 13, 2008). However, even if all participants are not established, general traffic obstruction is not established as a matter of course against all participants. In fact, a direct act that directly interferes with traffic by significantly exceeding the scope of the report as mentioned above, or by a participant participating in a serious violation of the conditions, or in light of the circumstances and degree of participation or involvement of the participant, etc., if the participant can be held liable for the crime of common traffic obstruction (see, e.g., Supreme Court Decision 2016Do4921, Nov. 10, 2016).

On the other hand, general traffic obstruction is an abstract dangerous crime, where traffic is impossible or considerably difficult, and the result of traffic obstruction is not practically necessary (see, e.g., Supreme Court Decision 2004Do7545, Oct. 28, 2005). In addition, traffic obstruction in general traffic obstruction has the nature of continuous crime, and the traffic obstruction continues to exist so far as the traffic obstruction continues to exist. Therefore, even if the traffic flow has already been obstructed by other participants at the time of participation in an assembly causing traffic obstruction by significantly violating the conditions under Article 12 of the Assembly and Demonstration Act, if it is deemed that the traffic flow was obstructed by other participants at the time of participation, and if it can be deemed that the traffic obstruction continued to exist by implied and net conspiracy with other participants who caused traffic obstruction (see Supreme Court Decision 2017Do11408, Jan. 24, 2018).

2. Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, it cannot be deemed that there was a danger of traffic obstruction since the defendant was on a road in which traffic flow is obstructed, or the part of the judgment below’s reasoning that the conspiracy co-principal of general traffic obstruction is not established is not appropriate unless there is evidence that the defendant conspiredd with other participants in the assembly in advance with the road occupation. However, it is just in conclusion that the court below affirmed the judgment of the court of first instance which acquitted the defendant on the ground that the facts charged in this case against the defendant constituted a case where there is no proof of crime, and contrary to what is alleged in the grounds of appeal, there is no error of exceeding the bounds of the principle of free evaluation of evidence

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

Justices Kwon Soon-il (Presiding Justice)