집회소음의 규제 문제의 헌법적 검토

Abstract

This article is a constitutional review of the issue of assembly noise arising from the exercise of freedom of assembly. The noise of the assembly can be said to occur naturally during the assembly. However, it needs to be regulated that residents near the assembly site suffer severe noise damage from assembly. It is necessary to find a point of balance and harmony between the freedom of assembly and the environmental rights of nearby dwellers. Such assembly noise standards refer to the limits that people near the rally site can accept. It was examined that the status and function of freedom of assembly under the democratic constitution, and examined the meaning and problem situation of assembly noise. It then sought to establish the constitutional basis and nature of the ‘residence tranquility’ to protect by noise regulation of assembly, and reviewed the direction and method of resolution and the limitation of basic rights and limitations in relation to the conflict between freedom of assembly and the environmental rights of residents. Under the current Assembly Act, I examined the regulatory system for assembly noise and the recent revision of the Enforcement Decree of the Assembly Act, which strengthened the standards for assembly noise. Strengthening the “assembly noise standard” through the revision of the enforcement ordinance is a suitable and necessary way to reduce excessive noise, and introducing the “maximum noise level” or strengthening the “night-time noise standard” is also considered to be relevant. However, Article 14 paragraph 1 of the current Assembly Act saw that Article 4 paragraph 2 of the Decree of the Assembly Act extends the scope of regulation beyond the scope of regulations expected by the law and violates the law-abiding principle, even though there is no separate regulation in the “voice or slogan shouting”. As government officials had no sense of problem as a violation of the law-abiding principle, the revision of the enforcement ordinance again raised the issue of creating new regulations on assembly noise near a national commemoration event without legal grounds in Assembly Act. The noise of assembly should be regulated in the unity and balance of the legal system with living noise under environmental law. Therefore, we should first strengthen the standard of living noise under the Environmental Act to reduce the overall noise of living around us, and then revise the standard of assembly noise accordingly. However, the revision of the enforcement ordinance has led to an “contradictory situation” in which the standard of living noise is not changed, but only the standard of assembly noise is strengthened. These regulations can further narrow room for assembly participants, and they are not consistent with democracy. These problems can be seen as arising from the idea of prioritizing legal regulations. Therefore, in this article, it is desirable for the social conflict over the noise of assembly to be resolved through the establishment of a sound culture of assembly based on the tolerance and understanding of democratic citizens rather than by first using legal means of regulation.