일반교통방해죄와 집회시위에의 그 적용을 둘러싼 문제

Abstract

Article 185(General Obstruction of Traffic) of the Korean Criminal Code says, "A person who damages, destroys or blocks a road, water-way, or bridge, or obstructs traffic by other means, shall be punished by imprisonment for not more than 10 years or by a fine not exceeding 15 million won." My points about this article are three. First, words like "by other means" are vague and ambiguous, and might infringe on the liberty and property of citizens. "Other means" should be interpreted within a narrow boundary, or only in the "equal or similar degree to "damage, destruction or blocking." Second, the boundary of punishment ranges from 10 years imprisonment to 50 thousand won, and allows too wide sentencing discretion to judges. The article 185 should be only applied to the serious cases which endanger the security of persons in order to defend itself against the charge of unconstitutionality. More serious problem occurs when Article 185 applies to street demonstrators. The freedom of demonstration belongs to the fundamental human rights of people. Street demonstration may obsrtuct traffic order. Illegal street march could be subject to the violation of misdemeanor, but such an exercise of constitutional rights should not be categorized as a felony offense like article 185.