Supreme Court Decision 2012Do14137 Decided March 13, 2014 【Violation of the Assembly and Demonstration Act·General Traffic Obstruction】* First draft 【Main Issues and Holdings】 [1] Where a specific dispersion ground is not notified in the dispersion order or it is ordered with notice of an illegitimate ground under Article 20(1) of the Assembly and Demonstration Act, whether non-compliance with it can be held as a violation of Article 20(2) of the above Act (negative) [2] Criteria to determine identicalness of the reported outdoor assembly or demonstration under the Assembly and Demonstration Act with the actual outdoor assembly or demonstration, and the elements to establish the unreported demonstration where an organizer of an outdoor assembly or demonstration committed an act which considerably deviates from the reported scope [3] The case holding that, where Defendant participated at the demonstration; occupied the road, marched, received dispersion order from the competent police authority on the ground that the demonstration was unreported, but disobeyed, and was charged with violation of the Assembly and Demonstration Act (the ADA), the court belows conviction erred in misapprehension of legal principle, since it is hard to be seen as occurred despite prohibition or without a report, and non-compliance with such dispersion order premised on the non-report of demonstration does not constitute a crime violating the ADA 【Summary of Decision】 [1]Article 20(1) of the Assembly and Demonstration Act (the ADA) provides that with respect to an assembly or demonstration as set forth in any of the following subparagraphs, the head of the competent police authority may demand the voluntary dispersion thereof within a reasonable time, and if such demand fails to be fulfilled, he/she may order dispersion. Article 20(2) provides that when an assembly or demonstration has been ordered to be dispersed under parag. (1), all participants shall, without delay, leave from the scene. The relevant provision is construed that if the competent police authority ordered the above dispersion, it shall be notified which one of the subparagraphs of Article 20(1) of the ADA applies as the specific ground. Thus if a specific dispersion ground is not notified in dispersion order or it is ordered without legitimate ground, non-compliance with dispersion order cannot be held as violation of Article 20(2) of the ADA. [2] Identicalness of the reported outdoor assembly or demonstration under the Assembly and Demonstration Act with the actual outdoor assembly or demonstration should be determined generally and synthetically by comparison of reported purpose, date, place, organizer, participating group/participants number, and demonstration method etc. Although the organizer reporting outdoor assembly or demonstration deviated from the scope of purpose, date, place, and method etc. during the progress of the event, such deviation alone does not make it occurrence without the report. If outdoor assembly or demonstration progresses with different contents under the lead of other organizer or participating group from the outset, or if it initially starts under the lead of reporting organizer or participating group but changed in the middle into outdoor assembly or demonstration with different contents, the extent should reach the degree that makes the previous report a nominal excuse. [3] The case held that, where Defendant participated at the demonstration; occupied the road, marched, received dispersion order from the competent police authority on the ground that the demonstration was unreported, but disobeyed, and was charged with violation of the Assembly and Demonstration Act (the ADA), the court belows conviction erred in misapprehension of legal principle as to identicalness of demonstration and non-compliance with dispersion order under the ADA, since no materials showed that the demonstration Defendant participated was changed to one with different contents from the report by the Korea Metal Workers Union; thus, it is hard to be seen as occurred despite prohibition or without report, and although dispersion was ordered as to this cases demonstration based on the non-report, we do not hold non-compliance with such dispersion order premised on the non-report of demonstration as crime violating the ADA. 【Reference Provisions】[1] Article 20(1), 20(2), 24 subparag.5 of the Assembly and Demonstration Act / [2] Articles 6(1), 20(1)2 of the Assembly and Demonstration Act / [3] Articles 6(1), 20(1)2, 20(2), 24 subparag.5 of the Assembly and Demonstration Act Article 20 of the Assembly and Demonstration Act (Dispersion of Assembly or Demonstration) (1) With respect to an assembly or demonstration as set forth in any of the following subparagraphs, the head of the competent police authority may demand the voluntary dispersion thereof within a reasonable time, and if such demand fails to be fulfilled, he/she may order dispersion: 1. Any assembly or demonstration in violation of Article 5 (1), main sentence of Article 10, or Article 11; 2. Any assembly or demonstration which has not been reported under Article 6 (1), or which is banned under Article 8 or 12; 3. Any assembly or demonstration that has clearly threatened the maintenance of order, such as the smooth flow of traffic, etc., in violation of the restriction as provided in Article 8 (3) and the conditions as referred to in the proviso to Article 10 or Article 12; 4. Any assembly or demonstration, the conclusion of which has been declared under Article 16 (3); and 5. Any assembly or demonstration which has not been conducted in an orderly manner due to the conduct falling under any of subparagraphs of Article 16 (4). (2) When an assembly or demonstration has been ordered to be dispersed under paragraph (1), all participants shall, without delay, leave from the scene. Article 24 of the Assembly and Demonstration Act (Penal Provisions) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than six months, a fine not exceeding 500,000 won, penal detention or minor fine: 5. A person who violates Article 16 (5), 17 (2), 18 (2) or 20 (2). Article 6 of the Assembly and Demonstration Act (Report, etc. on Outdoor Assembly or Demonstration) (1) Any person who desires to hold an outdoor assembly or to stage a demonstration shall, from 720 to 48 hours before such assembly or demonstration is held, submit a report on the details in all the following subparagraphs to the chief of the competent police station: Provided, That if two or more police stations have jurisdiction over such assembly or demonstration, such report shall be submitted to the commissioner of the competent regional police agency, and if two or more regional police agencies have jurisdiction over it, such report shall be submitted to the commissioner of the competent regional police agency exercising jurisdiction over the place where it takes place: 1. Objective; 2. Date and time (including hours involved); 3. Place; 4. The following matters concerning the organizer (in the case of an organization, including its representative), the person in charge of liaison, and moderators: (a) Address; (b) Name; (c) Occupation; and (d) Contact information; 5. Organizations expected to participate and the estimated number of participants; and 6. Methods of demonstration (including a route map). 【Reference Cases】[1] Supreme Court Decision 2011Do7193 decided Feb. 9, 2012 (Gong2012Sang, 476) / [2] Supreme Court Decision 2006Do9471 decided July 10, 2008 (Gong2008Ha, 1193) 【Defendant】Defendant 【Appellant】Defendant 【Defense Counsel】Attorney Kim Jeong-jin 【Judgment of the court below】Seoul Central District Court Decision 2012No1549 decided Nov. 9, 2012 【Disposition】The judgment below is reversed, and the case is remanded to Seoul Central District Court Panel Division. 【Reasoning】The grounds of appeal are examined. 1. Regarding violation of the Assembly and Demonstration Act A. Article 20(1) of the Assembly and Demonstration Act (the ADA) provides that with respect to an assembly or demonstration as set forth in any of the following subparagraphs, the head of the competent police authority may demand the voluntary dispersion thereof within a reasonable time, and if such demand fails to be fulfilled, he/she may order dispersion. Article 20(2) provides that when an assembly or demonstration has been ordered to be dispersed under parag. (1), all participants shall, without delay, leave from the scene. The relevant provision is construed that if the competent police authority ordered the above dispersion, it shall be notified which one of the subparagraphs of Article 20(1) of the ADA applies as the specific ground (see Supreme Court Decision 2011Do7193, Feb. 9, 2012). Thus if a specific dispersion ground is not notified in dispersion order or it is ordered without legitimate ground, non-compliance with dispersion order cannot be held as violation of Article 20(2) of the ADA. On the other hand, identicalness of the reported outdoor assembly or demonstration under the ADA with the actual outdoor assembly or demonstration should be determined generally and synthetically by comparison of reported purpose, date, place, organizer, participating group/participants number, and demonstration method etc. Although the organizer reporting outdoor assembly or demonstration deviated from the scope of purpose, date, place, and method etc. during the progress of the event, such deviation alone does not make it occurrence without the report. If outdoor assembly or demonstration progresses with different contents under the lead of other organizer or participating group from the outset, or if it initially starts under the lead of reporting organizer or participating group but changed in the middle into outdoor assembly or demonstration with different contents, the extent should reach the degree that makes the previous report a nominal excuse (see Supreme Court Decision 2006Do9471, July 10, 2008). B. Essence of the charge of violation of the ADA in this case is: on Aug. 27, 2011, around 22:00, Defendant participated with 2,500 college students or the Korean Confederation of Trade Unions members, etc. at the 4th bus demonstration; he shouted detain the non-indicted 1, sitting at the road in front of Seoul Metorpolitan Police Agency (SMPA) in Seoul, Seodaemoon-gu, and occupied the road and marched towards Dongnimmun Gate direction; on the ground of unreported demonstration, the head of the police station guard division as delegated by the superintendent of Seoul Seodaemoon police station ordered dispersion three times, but there was no prompt dispersion. The records showed that the Korea Metal Workers Union (Metal Labor Union) submitted demonstration report on Aug. 23, 2011 to the SMPA commissioner for pressing forward solution of △△ Heavy Industry situation as follows: purpose hoping for redundancy layoff withdrawal, date Aug. 27, 2011(Sat) ~ Aug. 28.(Sun) 00:00 ~ 23:59, place and marching Dongnimmun Gate station No.1 exit ~ △△ Heavy Industry etc. 45 places within Seoul and section organizer Metal Labor Union, representative the non-indicted 2 chairman, contact person the non-indicted 3 organization head, participating group hope groups (undecided), participants number about 30,000 (specific number not specified), demonstration (marching) method sitting, slogan, speech, advertisement/ promotion, culture event, performance, etc. diverse means will be used, demonstration marching) route same as the above place (including motor-vehicle road and pedestrian road, pedestrian road only with small number of participants). The SMPA commissioner notified prohibition as to 43 places (route) among the above outdoor assembly and demonstration report on Aug. 25, 2011 pursuant to Articles 8(1), 8(2), 11, and 12, but did not do so as to two places routes) Dongnimmun Gate station No. 1 exit ~ △△ Heavy Industry etc., which was conditioned on maintenance of traffic order pursuant to Article 12(1) of the ADA. No materials on the records showed that this cases demonstration where Defendant participated progressed with the contents under the lead of other organizers or participating group etc. differently from the report by Metal Labor Union or that it started under the Metal Labor Unions lead but organizer or participating group etc. was changed in the middle and outdoor assembly or demonstration progressed differently from the report. C. We examined the facts in light of the above legal principle. This cases demonstration may be viewed as proceeding partly deviating from the reported scope in its marching direction, etc. However it is hard to be seen as occurred despite prohibition or without report. Although dispersion was ordered as to this cases demonstration on the ground of non-report, we do not hold non-compliance with such dispersion order as a crime violating the ADA. Nonetheless, the court below affirmed the first instance courts conviction of violation of the ADA under the premise that this cases demonstration is unreported one. The judgment below erred in misapprehension of legal principle as to identicalness in demonstration and non-obeyance of dispersion order under the ADA which affected the judgment. Defendants ground of appeal assigning this error has merit. 2. Regarding the general traffic obstruction A. The essence of charge of general traffic obstruction in the charge of this case is: on Aug. 27, 2011. around 22:00 Defendant with 2500 college students or the Korean Confederation of Trade Unions members, etc. participated at the 4th bus demonstration; sat at the road in front of SMPA in Seoul, Seodaemoon-gu; shouted detain the non-indicted 1, etc.; they occupied motor vehicle roads in the direction of Dongnimmun Gate and marched; they occupied motor vehicle roads and obstructed the traffic from Aug. 27, 2011, around 22:00 to Aug. 28 of the same month, around 00:30; thus Defendant with 2,500 participants in the above demonstration obstructed road traffic for 3 hours. The court below convicted the above charge based on evidence on the grounds that this cases demonstrations organizer, Metal Labor Union, held 50 ~ 60 assembly or demonstration annually; it appears to know very well that this cases demonstration is subject to prohibition or restraint notice as night outdoor demonstration; around Aug. 25, 2011, SMPA commissioner prohibited demonstration and marching on this cases roads to maintain traffic order; on Aug. 26, 2011 before this cases demonstration, the notice of the prohibition was delivered to Metal Labor Union. B. However, we find it hard to affirm the fact-findings and determination of the court below. The records showed as follows. Metal Labor Union reported on Aug. 23, 2011 outdoor assembly and demonstration regarding the above total 45 places (route). SMPA commissioner on Aug. 25, 2011 notified prohibition as to 43 places (route) pursuant to Articles 8(1), 8(2), 11, and 12 of the ADA. but did not do so as to 2 places, Dongnimmun Gate station No. 1 exit ~ △△ Heavy Industry etc. On Aug. 26, 2011, as to 2 places (route) of Dongnimmun Gate station No. 1 exit ~ △△ Heavy Industry etc., marching roads are changed to Dongnimmun Gate station No. 5 exit → Seodaemun station rotary → front of Seoul station → Namyoung three way intersection (two one-way lanes except bus only lane) etc. since outdoor assembly and demonstration occur on main roads according to Article 12(1) of the ADA. The decision was conditioned on speedy progression using two one-way lanes except bus only lane, end of marching at Namyoung three way intersection(before crosswalk) or before, no traffic obstruction with marching across two one-way lanes or wrapping-up assembly on the road under the excuse of cultural performance, etc. and no random change of marching section, sitting or stop marching during progression of marching for maintenance of traffic order (this cases condition). On the same day, the non-indicted 5 police sergeant of Seoul Namdaemun police station information division visited the place near Metal Labor Union office located 5th floor of the Newspaper B/D. Jung-gu, Seoul (hereinafter omitted) and made a call to the non-indicted 6 organization division head (Metal Labor Union contact person with police) and told that he will deliver a traffic order maintenance condition notice. The non-indicted 6 requested to put it in the post box and it was put in Metal Labor Union post box in the 1st floor. He sent text message to the non-indicted 6 that take it from the post box. The section from the front of the Police Agency to Dongnimmun Gate park where this cases demonstration happened was included in the above marching roads on which Seoul Metropolitan Police Agency superintendent had decided to put restrictions. We examine the above facts. This cases demonstration where Defendant participated is not prohibited by SMPA commissioner under Article 8(1) of the ADA, and it is demonstration with the condition of this case for traffic order maintenance under Article 12(1) of the ADA. It cannot be said that the crime of general traffic obstruction is established directly from acknowledgment that Defendant participated at this cases demonstration. Thus, the court below should have deliberated whether this cases condition was lawfully delivered to Metal Labor Union, or this cases demonstration deviated considerably from the initial scope of report, or this cases condition was seriously violated, or Defendant actually committed an act directly causing traffic obstruction by participating at the above deviation or violation, or whether Defendant can be held criminally liable as conspiring co-principal in light of Defendants participation circumstance or its extent, etc. Nonetheless, the court below did not deliberate on the above issues, and affirmed the first instance conviction of this cases general traffic obstruction as charged based on its reasons. It erred in misapprehension of legal principle as to notice of restriction for the sake of traffic flow under the ADA and general traffic obstruction offense which resulted in complete deliberation, It affected the conclusion of the judgment. Defendants grounds of appeal assigning this error has merit. 3. Conclusion Therefore, the judgment below is reversed, and the case is demanded to the court below. It is so decided as per Disposition by all participating Justices assent Justices Kim Shin (Presiding Justice) Min Il-young Lee In-bok (Justice in charge) Park Poe-young * This translation is provisional and subject to revision
Posted on: Fri, 08 Aug 2014 23:32:28 +0000
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