소요죄의 제한적 해석의 논거

Abstract

This research began from the following question: Despite its seemingly universal applicability, why is the provision of riot not frequently applied? The seldom usage of the provision itself derived social meaning, requiring further study. In practice, the usage of riot was limited compared to that of the Punishment of Violences, etc. Act or the Assembly and Demonstration Act. This situation arose from the restrictive interpretation of the provision. Existing interpretation developed towards restricting the scope of riot based on grounds that the provision’s purpose is to protect national or social interest. However, restricting the scope of application through purposive approach based on legal interest is insufficient, because the provision’s literary meaning is open for wider applications. Therefore, this research tracked the historical background of riot by looking into the legislative history(historical interpretation), and looked into the changes in the legal system after the legislation by examining other rules related to riot(systematic interpretation). In historical aspect, it is confirmed that riot is applied to cases where violence of a crowd can bring massive national or social impact. If such violence exist, not only the few leaders who organized the crowd, but also all participants who joined the crowd are in violation of riot. Thus, the provision should be carefully applied in cases of rallies or protests. In a systematic perspective, the riot provision is applied where a crowd’s violence, without the purpose of subversion of national constitution or attacks on national territory, infringes upon the peace, safety and legal order of a province as well as individual interests. The important thing is that the violence must reach the level of infringing the peace, safety and legal order of 'an entire province'. For instance, even if a few hundred people assemble, throw rocks and swing wooden bars, it is not a riot unless the violence reach the level of endangering the peace, safety and legal order of the province as a whole. The existing restrictive interpretation of riot is supported by this study as a correct one. Its legal grounds exist not only in its legal interest but also in historical background and in the legal system. The provision should be interpreted and applied restrictively in the future as well.