야간옥외집회금지 조항의 허가제성

Abstract

The Constitutional Court of Korea ruled that the ‘assembly’ part(the instant provision of this case) in the ‘Assembly and Demonstration Act’(hereinafter ADA) Article 10 main body and proviso comes under the Censorship of the Constitution Article 21 Item 2. It is recognized as Censorship because it is usually forbidden, and then exceptionally permitted. The instant provision of this case was ruled unconstitutional, because Censorship is absolutely prohibited. The Constitutional Court identified the Censorship of the Constitution Article 21 Item 2 with the Censorship of Administrative Law. However, whether in the form of a license, or in the form of a report according to Administrative Law, it comes under the Censorship of the Constitution if the possibility of an assembly holding is decided by the ruling of the government office, and a penalty is given for an assembly which did not request the ruling of the government office or holing an assembly against it. Therefore, it comes under Censorship to make reporting an assembly necessary(ADA Article 6 Item 1), to inform in case of a banned assembly after an examination(Article 8 Item 1), and to give a penalty for an assembly which didn't report or holing an assembly which was informed as banned(Article 22 Item 2). But, the Constitutional Court ruled before that these provisions do not come under Censorship. The proviso of ADA Article 10, however, is a provision alleviating unconstitutionality of the above Censorship. It is a provision so as not to be punished by ADA Article 22 Item 2, making it possible not to inform prohibition. Therefore the proviso of ADA Article 10 itself or the combination with main body does not constitute Censorship. On the other hand, this original case was accused as the result of a nighttime outdoor assembly, not of holding an unauthorized assembly. The proviso of ADA Article 10 does not apply this case at all. The relevancy to the judgment can't be established.