「집회 및 시위에 관한 법률」 제11조의 위헌성

Abstract

First of all, The National Assembly is institution that must collect public opinion. And Article 11, number 1 of the law on assembly and demonstration entirely prohibits assembly that take place within 100 meters from boundary point of the National Assembly building, it will be in violation of the principle of balancing test. Therefore, hereafter 'the National Assembly building' in article 11, number 1 of the law on assembly and demonstration is rescinded or place within 100 meters from boundary point of the National Assembly building in article 11, number 1 of the law on assembly and demonstration must forbid an assembly is held in principle. Instead, in terms of function, it needs to allow some exceptionally, in order not to violate the principle of balancing test. Unlike the National Assembly building, however, the Courthouses, the Constitutional Court, the Constitutional Court chief justice's official residence and the Supreme Court Chief Justice's official residence should be independent from a portion of profits in the society and everyone who is concerned in dispute. And the president played a major role in state management and maintenance. Therefore, hereafter place within 100 meters from boundary point of these places in article 11, number 1 and number 2 of the law on assembly and demonstration must forbid an assembly is held in principle. Instead, in terms of function, it needs to allow some exceptionally, in order not to violate the principle of balancing test. Meanwhile, there is not enough to care why totally prohibit every assembly happening within 100 meters from the Chairman and the Prime Minister's official residence as it is in Article 11, number 2 and number 3 of the law on assembly and demonstration. For this reason, it is reasonable that these places, considered as general residential area, are protected under Article 8, clause 3, number 1 of the law on assembly and demonstration. Last, Article 11, number 4 of the law on assembly and demonstration ought not to prohibit every assembly around the diplomatic machinery and lodging of diplomatic delegation in principle, but allow assembly in principle in terms of function. The provision has merely to be revised so that the head of jurisdiction a police officer can decide whether they permit assembly or not focused on degree of harm caused by respective examples.