경찰청장의 서울광장 통행제지행위에 대한 공법적 고찰 - 헌법재판소 2011. 6. 30. 선고, 2009헌마406 결정에 대한 평석－

Abstract

First, it is proper that the judgment of 2009Hun-Ma406 decision of the constitutional court had all requirements of the constitutional petition of article 68, clause 1 of the constitutional court act. Next, it is proper that eight people besides Min○hee consider general right to freedom of action to have taken a limit by passage deterrence act of the police chief at seoul plaza. And it does not move their place of residence and stay ground that eight people besides Min○hee are going to pass seoul plaza. Therefore, this behavior of their don’t belong to a protection range of the freedom of residence and change of residence. Moreover, the use right of public object is not a kind of right. It is general right to freedom of action that it is limited closely most by this act of the police chief in a solution theory for competition of the basic right. And, it will be assumed that article 5, clause 1 of performance of duties by police officers act is clause of general delegation of power. Therefore,passage deterrence act of the police chief at seoul plaza is not violated principle of legal saving because it was held this clause of general delegation of power for grounds. Thus, it is not proper that judges of constitutional court don’t clarify this in this decision of the constitutional court in such a reason in detail definitely. At the end, no violence was done around seoul plaza on June 3, 2009. Therefore, the police chief did not have to do passage deterrence act at seoul plaza in its entirety, the purpose is not fair. Even if the purpose was fair, the police chief had to remove several places passage deterrence act at seoul plaza. And the police chief removed control in time with a little possibility that violence happened and weekday morning time, and a general right to freedom of action of eight people besides Min○hee had to minimize what was infringed. However, the police chief did not do this. So, a personal interest infringed than the public benefit protected is bigger, this act of the police chief in its entirety. Therefore, this act of the police chief is violated a principle of balancing test. Thus, it is proper that judgment assumed that it is violated a principle of balancing test as for this act of the police chief by this decision of the constitutional court.