집회․시위에 대한 형법 제185조 (일반교통방해죄) 적용의 문제점

Abstract

Controversy over the general obstruction of traffic clause in the Criminal Act had been aroused as the court approved the prosecution under that provision against the participants of the candlelight rally in 2008. The following decision on March 2010 by the Constitutional Court that declared the constitutionality of the clause intensified the debate. The reality that people who wish to exercise their most basic constitutional rights to assembly and demonstration are subject to criminal prosecution seriously harms the rule of law: it does not satisfy the principle of ultima ratio, one of the most fundamental principles of criminal law. While article 185 penalizes traffic-obstructing behavior that endangers safety of human life, body, or property, disturbance of traffic in the course of assembly and demonstration should not be punishable under the clause as these acts are based on fundamental rights stipulated in the Constitution. The courts hold that acts during unlawful assembly and demonstration are punishable. In accordance with the principle of lex specialis, however, the Assembly and Demonstration Act or Road Traffic Act shall be applied to these behaviors instead, as these contain provisions with identical action configurations. Further, none of the terms that describe the action configurations in the article, “destroys”, “blocks a road”, or “by other means”, do not correspond to the act of assembly and demonstration. Even if a broad interpretation by courts may be permissible, acts during assembly and demonstration are not subject to punishment by the clause as there is no infringement or risk of infringement of legal interest equivalent to the social legal interest which the article intends to secure. Also, certain inconvenience to the traffic is to be endured, as the extent of right to transport lies within the boundary of maximizing the freedom of assembly. Material disadvantages that exceed the balance can be resolved through other relevant regulations of the Criminal Act. Issue of excessive intervention of criminal law is another problem that this article poses as the special laws can be taken as denying a need to punish acts that do not cause direct harm to the public; the Assembly and Demonstration Act reduces the scope and degree of punishment against simple participants, and the Road Traffic Act provides that “a person who sits, lies, stands on a road in an obstructing manner” is subject only to minor fines. In conclusion, acts during assembly of demonstration should be subject to Assembly and Demonstration Act or Road Traffic Act only, rather than the general obstruction of traffic provision of the Criminal Act. It is further suggested that the action configurations of the article be clarified accordingly, through amendment of law.