집회장소 사용에 관한법적 考察

Abstract

When there are assemblies in such places as park, government building, or private property, can government or an individual responsible for managing these properties pose restrictions on a request to use the space for assembly? This kind ofa problem occurs rather frequently because there is a clash between two constitutional rights, i.e. the right to request to use space for assembly and proprietary right or the right of ownership. In this article, we surveyed legislations, judicial decisions and theories prevalent in other countries including U.S., France, Germany, and Japan. For example, the U.S. Supreme Court has established "Public Forum theory" when there is a conflict between the right to use public places for assembly and the right of ownership. It is one thing for people to notify police department that they will hold assembly in public properties according to the assembly and demonstration law and it is another whether the police agency should permit such assemblyin public spaces or not. It is not only legitimate but also necessary for police to exercise discretion whether such assembly should be allowed in public properties. Police should take proper actions by adopting guidelines to resolve such matters, which are often ignored in the field.