교통 소통을 위해 집회를 금지할 수 있도록 한 「집시법」 제12조의 문제점과 개선 방향

Abstract

This paper reviewed the problems of Article 12 of the Assembly Act of Korea, which allows police to ban rallies on the grounds of traffic obstruction. Freedom of protest, so-called freedom of assembly is a indispensable part of democracy, so that the assembly Act should be revised to ensure the freedom of assembly is sufficiently guaranteed in response to the request of the Constitution. Since we can draw 'the principle of endurance of traffic inconvenience' in the interpretation of the Constitution, we can say that the people should take the inconvenience of the traffic caused by rallies in principle. It is desirable to delete the prohibition notification to rallies section for traffic obstruction of Article in the assembly Act from the standpoint of the purpose and proportionality of law in the Constitution which is prohibiting the assembly permission system. Even if the traffic is disrupted and traffic is inconvenient, a rally on the main road can be regarded as legitimate as long as people's obligation to endure inconvenience is recognized in principle. Criminal penalties should not be made easily even though for any violation of the conditions or restrictions regulated by police according to the Article 12 of the assembly Act. Because punishing a rally with a crime of general traffic obstruction on the grounds that the rally caused a traffic obstruction could potentially limit the freedom of assembly excessively. But if the rally caused a serious traffic obstruction, we can't say that people have a constitutional obligation to bear any more. In that case, there is a need for criminal punishment not with a crime of general traffic obstruction by the criminal act but with a crime according to the assembly Act.