Supreme Court: "Illegal Assembly Near Supreme Court... Constitutional Court's 'Unconstitutional Decision' Applied Retroactively, Not Guilty"

Supreme Court, Seocho-dong, Seoul. Photo by Honam Moon munonam@

[Asia Economy Reporter Kim Daehyun] The Supreme Court confirmed the acquittal of a man who was fined in the first and second trials for violating the Assembly and Demonstration Act after organizing a rally near the Supreme Court building.

On the 9th, the Supreme Court's 2nd Division (Presiding Justice Park Sangok) announced that it overturned the lower court's ruling that sentenced Mr. A to a fine of 500,000 won for violating the Assembly and Demonstration Act and acquitted him. This was based on the judgment that the Constitutional Court's decision of unconstitutionality on the relevant legal provision should be applied retroactively.

Previously, Mr. A was prosecuted for organizing a rally within 100 meters of the Supreme Court building in 2015. He was investigated for setting up a large banner and placards under the pretext of a "press conference opposing the legalization of same-sex marriage" around the building and chanting slogans or delivering statements with about 70 participants.

The former Article 11 of the Assembly and Demonstration Act stipulated that "no one shall hold an outdoor assembly or demonstration within 100 meters from the boundary points of the National Assembly, courts of all levels, and the Constitutional Court buildings."

The first trial sentenced Mr. A to a fine of 500,000 won. The first trial court stated, "Considering the purpose of the press conference, the composition and number of participants, and the means of expression, it goes beyond the nature of a pure press conference and corresponds to an outdoor assembly as defined by the Assembly and Demonstration Act." Mr. A appealed, but the second trial dismissed it.

However, the situation changed when the Constitutional Court ruled the Article 11 of the Assembly and Demonstration Act unconstitutional in May 2018. The Constitutional Court's decision was based on the premise that the provision "excessively infringes on fundamental rights."

The Supreme Court also accepted this reasoning and acquitted Mr. A. The court stated, "When a legal provision related to punishment is declared unconstitutional, that provision loses its effect retroactively."