警察權 發動의 限界와 基本權

Abstract

In this case, the issue is whether Korean National Police Agency Commissioner General's order to place a number of police buses around Seoul Plaza to block the way of the claimants was infringement of their fundamental rights. Such exercise of public authority is legally considered as administrative immediate enforcement. The Constitutional Court of Korea considered it as the exception of the principle that no one may file a constitutional complaint without having exhausted all other processes. Because such infringement seemed to be repeated and the issue brought forward needed some constitutional clarification, the Court considered the claim meaningful and beneficial for the future protection of such rights even though it was not much of benefit in terms of the remedy of their subjective rights in the case. The majority of judges held that the exercise of public authority was in violation of anti-overrestriction principle, thus violating the freedom of movement of the claimants concerned. The Court also upheld that since Article 3 of Police Act and Article 2 of the Act concerning Execution of Duties of Police Officials can not be regarded as general empowerment clauses. Meanwhile, the dissenting judges stated that since the said laws can be regarded as general empowerment clauses, thus such exercise by the agency was not infringement of the claimants’ freedom of movement. However, we think it is more proper that the case is addressed in ordinary courts rather than in the Court. Because the ordinary courts adjudicate matters of fact and law. It is true that the incompleteness of fact-find proceeding in the Court affects the judgment on both the legality requirements and merits of the case. Therefore, it is considered to be rightful that the case should be dismissed based on its deficiency in legality requirements. When it comes to the merits of the case, as held in a recent Supreme Court case, Article 2 of the Act concerning Execution of Duties of Police Officials can be regarded as a general empowerment clause. In conclusion, we have an opinion that the judgement of the case should have focused on whether such exercise of public authority is in violation of the principle of police proportionality.