‘코로나19’ 공중보건위기와 헌법상 집회의 자유

Abstract

In the midst of unprecedented public health crisis following COVID-19, a clear absence of part of our legal system to respond to the crisis has been revealed. In order to improve the relevant legal system, a fair and balanced implementation of two demands- 'quarantine' and 'constitutional rights'- is essential. If the former is emphasized unilaterally and unconditionally, the risks of constant “expansion of the state power” and “perpetuating state of exceptions” are inevitable. And, the issue of "freedom of assembly" lies at the heart of whole discussion. Specifically, it has revealed itself as a problem in various situations, such as prohibitions against assemblies, restrictions and the appeal to the courts regarding assembly. This paper suggests several possible solutions as below. First, the court should be guaranteed for its faithful and thorough review of circumstances. In the need of protection against infectious diseases, simultaneously, there is a heavy burden of judgment the court (judge) carries during the proceedings upon the request of suspension of execution against prohibitions and restrictions of assemblies. It is possible to ensure the predictability of the people and secure a faithful judicial judgment period by specifying the deadline for such restrictions and prohibitions. Second, legal standards for restricting or prohibiting assembly as a reason for preventing infectious diseases can be provided in the ‘Infectious Disease Control and Prevention Act'. Third, a temporal but general prohibition of assembly at certain local area must be reviewed with strict scrutiny in the light of the constitutional principle of proportionality (Article 37, Paragraph 2).