[edit] Supreme Court Decision 98Da20929 delivered on October 9, 2001 [Damages]
【Main Issues】
[1]Whether or not an outdoor rally or demonstration, which was reported in advance, may be dispersed or stopped on the ground that the report was defective or the rally or demonstration was outside its reported scope (limitely negative)
[2]Whether the aspect of a demonstration that the demonstrators plan to march in prison uniform tied with ropes is an item that should be reported in advance.
[3]Where the immediate police interference and the stopping of the demonstration on the ground that the demonstration had proceeded in a manner other than the manner described in the advance-report was unlawful, whether the claim for damages against the state should be dismissed based on fairness, because the degree of fault on the part of the police was minimal considering the nature of a demonstration which calls for a prompt decision on its permissibility and the difficulty in making such a decision immediately, and because the demonstrators were also at fault for failing to report the demonstration properly.
【Summary of Decision】
[1] Under the former Assembly and Demonstration Act (amended by Act, Law No. 5985 of May 24, 1999), the head of the competent police authority may not interfere with or disperse an outdoor rally or demonstration merely on the ground that the advance report was defective or the rally or demonstration is out of its reported scope, because, as long as the gathering maintains the same aspects as described in the report, it cannot be regarded as unreported. Only if such defect in reporting or deviation from the reported scope directly harms another's legal interest or public peace and order under each specific circumstance may the police take necessary preventive or removal measures, which must be in the least restrictive way permitted by law.
[2] In light of the purpose of the demonstration to increase awareness for prisoners for conscience, the demonstrators' marching in the clothing similar to the prison uniform tied with ropes is an item that should be reported in advance, as an item concerning the manner of demonstration, pursuant to Article 6(1) of the Assembly and Demonstration Act and Article 2 of the Enforcement Decree of the Assembly and Demonstration Act.
[3] The immediate police interference in a demonstration on the ground that the demonstrators marched in the prison uniforms and tied with ropes that are not reported in advance is unlawful as an excessive restriction on the freedom of assembly. However, because a demonstration involves a number of people and may have a substantial effect on the surrounding people or facilities, the decision whether to permit or stop the demonstration is not the one for which the police can deliberate with sufficient time, but the one that must be made immediately to take prompt actions accordingly. Although the former Assembly and Demonstration Act (amended by Act, Law No. 5985 of May 24, 1999) did not expressly mention defect in the advance report as a ground for dispersing a rally or demonstration, no precedent or legal literature had existed or had been established up to the time of the rally at issue in this case with respect to whether in such case the police was permitted to disperse the participants outright or could take restrictive actions to prevent or remove harm only when a harm was done to others' rights or public peace and order by the defective report, thus even a legal expert might not be able to determine the same immediately at that time, we therefore do not find that the police officer was grossly at fault for determining that it was lawful to stop the rally on the ground of the defective report, which was brought to his attention for the first time only at the demonstration site. Considering that fault also lies on the part of the demonstrators who intentionally omitted to report in advance their plan to march in the prison uniform tied with a rope and who walked on the street designated for the traffic contrary to their reported statement, and likewise considering the content and the degree of fault on both the demonstrators' and the police officers' parts, especially the slightness of the police officer's fault, as well as the circumstances leading up to the dispersal of the demonstration, it is held just and fair that no claim for damages against the state is recognized.
【Reference Provisions】 [1] Articles 21(1) and 21(2) of the Constitution of the Republic of Korea, Articles 1 and 6 of the Assembly and Demonstration Act, and Article 18(1) of the former Assembly and Demonstration Act(amended by Act, Law No. 5985 of May 24, 1999) / [2] Article 6 of the Assembly and Demonstration Act, and Article 2 of the Enforcement Decree of the Assembly and Demonstration Act / [3] Article 2 of the State Compensation Act, and Article 18(1) of the former Assembly and Demonstration Act (amended by Act, Law No. 5985 of May 24, 1999)
Article 1 of the Assembly and Demonstration Act (Purpose). The purpose of this Act is to obtain harmony between the guarantee of the right to assembly and demonstration and public peace and order, by assuring any lawful assembly and demonstration to the utmost degree, and protecting citizens from any unlawful demonstration.
Article 6 of the Assembly and Demonstration Act (Report, etc. of Outdoor Assembly and Demonstration). (1) Any person who desires to hold an outdoor assembly or demonstration shall submit to the superintendent of the competent police station, forty-eight hours before the assembly or demonstration is held, a report stating the object, date, time (including the expected length of time and place of the assembly or demonstration; the name, address and occupation of the promoter (including the representative in the case of an organization); the person responsible for liaison and the maintenance of order; the name, address, occupation and subject of speech of the speaker; the organizations expected to participate therein; the estimated number of participants, and the method of demonstration (including the course and route map): Provided, That if the assembly or demonstration is under the jurisdiction of two or more police stations, it shall be submitted to the commissioner of the competent local police agency, and if the demonstration is under the jurisdiction of two or more local police agencies, it shall be submitted to the commissioner of the competent local police agency having the jurisdiction over the place where it is held.
(2) The superintendent of the competent police station or the commissioner of the competent local police agency (hereinafter referred to as the "head of the competent police authority") shall, without delay upon receiving the report as referred to in paragraph (1), issue a certificate of receipt to the reporter specifying the date when the report has been received.
Article 18 of the Former Assembly and Demonstration Act (amended by Act, Law No. 5985 of May 24, 1999) (Dispersion of Assembly or Demonstration) (1) The head of the competent police authority may demand voluntary dispersion of any of the following assemblies or demonstrations within a considerable time, and may order dispersion when such demand is not obeyed:
1. Assembly or demonstration in contravention of Article 5(1), main sentence of Article 10, or Article 11 above
2. Assembly or demonstration the closure of which has been declared as prescribed in Article 14(3)
3. Assembly or demonstration which has not been reported as prescribed in Article 6(1), or which is prohibited under Article 8 or 12(1)
4. Assembly or demonstration which clearly causes direct danger to the maintenance of order, such as smooth traffic, etc., in violation of the conditions as prescribed in the proviso of Article 10 or Article 12 above
(2) <omitted>
Article 2 of the Enforcement Decree of the Assembly and Demonstration Act (Method of Demonstration). The term "method of demonstration" as set forth in Article 6(1) of the Act means the following matters:
1. Form of demonstration
2. Whether to use vehicles, speech amplifiers, standing signboards, or other equipments expressing the assertions and the number thereof
3. Whether to chant the slogans in unison
4. Course (starting point, passing point, halfway event site, arrival point, etc.)
5. Route map (the progression of the demonstration parade indicated by a chart)
6. Method of passage on driveways, sidewalks, and intersections
7. Method of halfway event such as a sit-down demonstration, etc.
8. Other matters relating to the method of demonstration
Article 2 of the State Compensation Act (Liability for Damages). (1) When public officials inflict damage on other persons intentionally or negligently in the course of performing their official duties, in violation of the provisions of Acts and subordinate statutes or when they are liable for the compensation for damages under the Guarantee of Automobile Accident Compensation Act, the State or local governments shall remedy such damage under this Act: Provided, That when military personnel, employees in the armed forces, police officials or homeland reserve forces are killed in action or in the performance of their duties or injured in the course of performing their duties in connection with combat training or performance of other official duties, or in the facilities and motor vehicles, vessels, aircraft and other forms of transportation, all of which are used for national defense or the maintenance of public safety, they or their bereaved family shall not claim damages under this Act or the Civil Code, if they can claim an accident compensation, bereaved family's pension, wound annuity, etc., pursuant to other Acts and subordinate statutes.
(2) In the case of the main text of paragraph (1), if such damage has been caused by intentional act or gross negligence of the public official concerned, the State or local governments may demand reimbursement from the public official concerned.
【Plaintiffs, Appellants】 Lee Jang-ho, and 14 others (Law Office Duksu, Attorney Kim Chang-kook and 5 others, Counsel for plaintiffs and appellants)
【Defendants, Appellees】 The Republic of Korea, and 2 others
【Court of First Instance】 Seoul District Court Judgment 96Gadan 174974 delivered on August 29, 1997
【Court of Second Instance】 Seoul District Court Judgment 97Na43641 delivered on April 10, 1998
【Disposition】 The appeal shall be dismissed. All costs of appeal shall be assessed against the plaintiffs-appellants.
【Reasoning】 The grounds for appeal are examined as follows (arguments in the supplemental appellate brief not timely filed are discussed only to the extent that they supplement the grounds for appeal):
1. Article 6(1) of the former Assembly and Demonstration Act (amended by Act, Law No. 5985 of May 24, 1999, hereinafter referred to as the former "ADA") provided that "Any person who desires to hold an outdoor rally or demonstration shall submit to the superintendent of the competent police authority concerned a report stating the purpose, date, time (including the expected length of time), place of the rally or demonstration; name of the organizer (the representative, if a group), the name, address, and occupation of the liaison or coordinator; the name, address, occupation and subject of speech of the speaker; participating organizations; estimated number of participants; and the method of demonstration (including the route map) 48 hours in advance of the rally or demonstration." Article 2 of the Enforcement Decree of the former ADA specified the following items to be reported in advance as concerning the method of demonstration: "1. Form of the demonstration; 2. Any vehicles, speech amplifiers, standing signboards or other media of expression used; 3. Any shouting of slogans; 4. Route (starting point, passing point, sites of intermediate demonstrations, arrival point, etc.); 5. Route map showing the route the demonstration parade; 6. Method of passing on driveways, sidewalks, and intersections; 7. Method of intermediate demonstration such as sit-ins, etc.; or 8. Other matters relating to the method of demonstration." Article 18(1) of the former ADA listed as the types of rallies that the police may disperse the following: "1. Assembly or demonstration in contravention of Article 5(1), Article 10, or Article 11 above; 2. Assembly or demonstration ended as in Article 14(3); 3. Assembly or demonstration which has not been reported as prescribed in Article 6(1), or which is prohibited under Article 8 or 12(1); 4. Assembly or demonstration which violates Article 10 or Article 12 above and clearly causes direct danger to the traffic or maintenance of order." In view of Articles 21(1) and 21(2) of the Constitution of the Republic of Korea, which guarantees the freedom of assembly and disapproves a license system for assemblies, and Article 1 of the former ADA, which sets forth the purpose of the ADA, Article 6 of the former ADA mandating an advance report on any outdoor rally or demonstrationthat in essence was a 'moving assembly' should be construed to have been enacted to allow the police to be on notice as to the size and the nature of the rally and thereby protect lawful rallies and demonstrations, or take measures to maintain public peace and order. Accordingly, the prior report system should not function whereby in practice an outdoor assembly or demonstration can only be held by permission, thereby infringing upon the freedom of outdoor assembly or demonstration. Therefore, under the former ADA, even though certain statements within a report for an outdoor assembly or demonstration are insufficient or the method of any outdoor assembly or demonstration deviates from the reported scope, it cannot be deemed that a report has never been filed with respect to the outdoor assembly or demonstration so long as the outdoor assembly or demonstration maintains the same aspects as described in the report. Accordingly, the head of the competent police authority should not immediately disperse or stop the outdoor assembly or demonstration simply because the statements of a report were insufficient or the method of the outdoor assembly or demonstration has deviated from the reported scope. Only if any direct danger has been caused to other person's legal interest or public peace and order due to the insufficiency of the report or the deviation from the reported scope of demonstration in light of specific circumstances at the time of the particular outdoor demonstration or rally, may restrictive measures appropriate for prevention and removal of such danger be taken, to the minimum extent necessary and permitted by applicable laws and regulations.
2. Decision of the court below
According to the reasoning of the court below, it acknowledged the following facts upon comprehensive consideration of evidence presented and adopted: on August 5, 1996, the Democratization Practice Family Movement Council ("DPFMC") submitted to the superintendent of the Seoul Jungbu Police Station a report for a demonstration entitled 'March for Release of Prisoners for Conscience' scheduled to be held from 11:00 to 13:00 on August 8, 1996, wherein demonstrators would march following a certain course of Myungdong Cathedral-Joongang Theater-Side of Head Office of Korea Exchange Bank-Esquire Rotary-Entrance of Myungdong Cathedral, for the purpose of increasing public awareness among the citizens of the prisoners for conscience; in the above demonstration held at or around 11:00 on August 8, 1996, approximately 100 persons including the plaintiffs, out of approximately 150 participants, began marching at the head of the rally from Myungdong Cathedral along the street headed towards Joongang Theater, wearing clothes similar to the prison uniform with the prisoner identification numbers attached to the left chest of the clothes with their bodies bound with ropes which had the appearance of those actually used in criminal proceedings he street for the traffic and for the pedestrians was marked by white stone divider, and the demonstrators rallied along the street for the traffic; at the point the demonstrators marched less than 50m, defendant Lee Sung-kyu, Manager of the Information Department of the Seoul Jungbu Police Station, stopped the rally by mobilizing the police force, indicating that the demonstration where the plaintiffs were participating was different from what had been reported to be, and requested them to take off the prisoners' uniform and wear normal clothes; and the DPFMC reported the method of the demonstration to be a 'peaceful march in triple columns on the sidewalk and distribution of leaflets, under police officers' guidance,' and did not report that they would march wearing clothes similar to prisoners' uniform with their bodies bound with ropes. Then the court below moved on to conclude that the plaintiffs-appellants' appeal should be dismissed in its entirety, on the grounds that collectively wearing prisoner's uniform, which is not a normal attire, with the prisoner identification numbers attached on the chest of such clothes and with the ropes tied around the body was within the scope of the matters to be reported by law as a method of demonstration as it might possibly cause anxiety or displeasure on others or might stipulate such possibly leading to mutual conflicts, and was therefore an important method of demonstration as a means to inform the purpose of the demonstration calling for the release of the prisoners for conscience, thus the head of the competent police authority had a reason to take measures to prevent any such danger or conflict in advance, and, also that, whether to use the street for the traffic or for the pedestrian at the center of a city was within the scope of the matters to be reported by law as a method of demonstration as an important method of demonstration as it would differ significantly in its effect on the traffic, and that, however, the DPFMC used the prisoners' uniform and the ropes which it had failed to report the usage thereof and marched on the street for the traffic while it reported that it would use the sidewalk, therefore, such DPFMC's demonstration was illegal as clearly deviated from the reported method of demonstration and the interference thereinto by the police in charge of the maintenance of the public order could not be deemed as an illegal performance of official duties.
3. The Judgment of Supreme Court
A. With respect to the claim against the defendant Republic of Korea
Although the demonstrators including the plaintiffs marched all wearing clothes similar to the prisoners' uniform which had not been reported, with their bodies tied with ropes, such method of demonstration to express their assertion has considerable relations with the purpose of the demonstration as reported. Further, in light of the specific circumstances at the time of the demonstration based on the record presented, including the peaceful process of the demonstration, it hardly appears that any direct danger was caused to public peace and order, including any conflict with other people, due to such unreported method of expression. Hence, it was not reasonable to stop the demonstration simply because there was a possibility or suspicion that such method of expression might stimulate, and incur conflicts with, other people. On the other hand, the method of the demonstration deviated from the scope of the demonstration as reported in advance, in that the demonstrators marched on the street for the traffic differently from the reported method that they would march on the sidewalk. However, even if a direct danger was caused to public peace and order including traffic order as a result thereof, at the earlier point of the demonstration by the time the police intervened and stopped the demonstration, the rally was on the street in front of Myungdong Cathedral, where the demonstrators were marching in a orderly manner along the edge of the street for the traffic next to the white stone divider between the street for the traffic and for the pedestrian, and it would not have taken a long period of time for the demonstrators to reach the sidewalk in front of the Joonang Theater from the street in front of Myungdong Cathedral, and, further yet, the police mobilized by defendant Lee Sung-kyu blockaded the sidewalk as well as the street for the traffic in front of the demonstrators. Under the totality of the circumstances on records including the above circumstances and also other circumstances concerning the street conditions at the demonstration site and the traffic conditions, defendant Lee Sung-kyu's act blockading the sidewalks as well as the street for the traffic in front of the demonstrators by mobilizing the police immediately after the discovery that the method of demonstration actually adopted was different from the one reported in advance excessively limited the freedom of demonstration beyond the extent necessary to maintain the public peace and order. Therefore, the act of interference with and dispersal of the demonstration in the case at bar was illegal in every aspect.
The decision of the court below that the police officers' stopping the demonstration of the demonstrators including the plaintiffs was not illegal on its stated grounds as indicated above was a reversible error in matters of law as to the principles applied to demonstration.
Further, when the demonstration in this case was stopped, there were no provisions in law providing that a demonstration could be dispersed in case the the report submitted in advance was insufficient. Only Article 18(3) of the former ADA provided that an assembly or demonstration which had not been reported could be dispersed. Moreover, even though the statements in the report were insufficient, an assembly or demonstration could not be immediately stopped due to such insufficiency, and only if a direct danger was caused to other person's legal interest or public peace and order due to such insufficiency, a restrictive action appropriate for prevention or removal of the danger could be taken. However, at the time of the police intervention in this case, the police official misjudged, by misinterpreting the relevant laws and regulations, that he was also allowed to immediately stop the demonstration when the statements in the report were insufficient, and, therefore, he committed the error of stopping the demonstration in this case.
However, a demonstration concerns many people and it may considerably affect people or facilities in the neighborhood of the place of the demonstration. Thus, if there is any dispute between those participating in the demonstration as to whether or not the demonstration is lawful, a police official is not provided with sufficient time to judge whether to permit or stop the demonstration upon careful consideration. Rather, a police official should immediately determine whether or not to permit the demonstration on the site and promptly take appropriate measures pursuant to the determination. At the time of the demonstration at issue in this case, it was not expressly set forth in the former ADA that a demonstration could be dispersed due to the insufficiency of the report. Until that point of time, there had been no precedents, legal theories or leading cases as to whether the demonstration should be dispersed in such case as if a report had never been filed, or the demonstration should not be immediately stopped on the sole ground of the insufficiency of the report unless any direct danger was caused to other person's legal interest or public peace and order due to such insufficiency then a restrictive action appropriate for prevention or removal of the danger could be taken. Likewise, even a legal expert would not have been able to make an immediate judgment at that time. Therefore, it does not appear that the police official was grossly at fault in determining that the demonstration in this case could immediately be stopped on the ground of the insufficiencies in the report which were discovered for the first time only at the demonstration site. On the other hand, as noted above, the demonstrators' marching in the clothes similar to the prisoners' uniform with their bodies tied with ropes was related to the method of demonstration as prescribed in Article 6(1) of the former ADA and Article 2 of the Enforcement Decree of the former ADA as applicable at that time, and, as such, was a matter to be reported. Nevertheless, the plaintiffs committed an error of intentionally not reporting the above method on purpose. Further, the plaintiffs also erred in marching on the part of the street for the traffic at the time of the demonstration, as the court below found.
Considering the content and the degree of fault on the part of both the plaintiffs and the police officials and especially that the police official's fault appears to have been minimal, and other circumstances including the one leading to the stopping of the demonstration in this case in light of the principle of fairness, we are of the opinion that it is reasonable to release defendant Republic of Korea from any liability for compensation.
Accordingly, the plaintiffs' claim against defendant Republic of Korea should be rejected. Hence, although there are certain errors in the reasoning of the court below as indicated above, the conclusion of the court below is fair and reasonable in that it dismissed the plaintiffs' claims. Therefore, the grounds for appeal on this issue have no merit.
B. With respect to the claim against the defendants Eom Ho-sung and Lee Sung-kyu
If a public official causes damage to other person due to tort in performing his or her official duties, the Government is liable for damages. In addition, if the damage is caused by intentional act or gross negligence of the public official he or she is also liable to compensate the damage. However, if the damage is caused by slight and non-gross negligence of the public official, he or she is not liable to compensate the damage. (see Supreme Court Full Bench Decision 95Da38677 delivered on February 15, 1996.)
As stated above, the court below's decision that the police officers' stopping the demonstration of the demonstrators including the plaintiffs was not illegal was a reversible error in matters of law as to applicable legal principles. However, on the other hand, pursuant to the records, defendant Eom Ho-sung, the superintendent of the Seoul Jungbu Police Station, and defendant Lee Sung-kyu, Manager of the Information Department of the Seoul Jungbu Police Station, made thejudgmentthat a failure to report the method of expression of the asserted subject matter of the demonstration was a violation of the report requirement under the former ADA and they were allowed to stop the demonstration solely on such ground. As noted above, it cannot be said that there existed no error in the defendants' interpretation of laws in reaching the above judgement. However, it cannot be said that the defendants were at fault of willful misconduct or gross negligence, therefore, it was fair and reasonable that the court below concluded that the plaintiffs' claim for damages against defendants Eom Ho-sung and Lee Sung-kyu should be dismissed. Therefore, the grounds for appeal on this issue have no merit.
4. Accordingly, all appeals shall be dismissed, and all costs of appeal shall be assessed against the losing party. This decision is delivered with the assent of all Justices who reviewed the appeal.
Justices Suh Sung (Presiding Justice)
Yoo Ji-dam
Bae Ki-won(Justice in charge)
Park Jae-yoon
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