야간 옥외집회 및 시위에 관한 법규정의 공백에 따른 방향 설정을 위한 비교법적 고찰

Abstract

There has never been such a heated discussion on the freedom of assembly in Seoul, the capital of the Republic of Korea since Korea entered into a constitutional state in 1987. The controversy on the freedom of assembly and demonstration has been sparked by the safety issue on the American beef between Korea and the USA on April 18, 2008. Being furious at the Korean government for giving up the minimum safety measure for its people in the negotiation with the US government, Koreans started forming an outdoor assembly, protesting day and night against the government and its poor negotiation with the US. The Korean police prosecuted the people who organized the candlelight vigil protest for violating the "Assembly and Demonstration Act". Judge Jae-Young Park at Seoul Central District Court took the case of Mr. Jin-Geol Ahn who was a team leader of the Anti-Mad Cow Association being indicted on charge of leading the candlelight vigil. The Judge then recommended the Constitutional Court adjudication on the constitutionality of the Act, saying that Article 21 of the Korean Constitution sets forth the freedom of assembly and association, therefore Article 10 of "Assembly and Demonstration Act" is not constitutional as it bans an outdoor assembly at night unless it meets a certain condition. The Constitutional Court has reached to a decision on September 24, 2009 and ruled that Article 10 of "Assembly and Demonstration Act" was a constitutional discord with 5(unconstitutional) - 2(constitutional discord) -2(constitutional). In addition, the Constitutional Court recommended the lawmakers to amend the concerned article no later than June 30, 2010 in order to prevent any social confusion and to permit the article to be remained effective until the amendment. However, the provisions on such matter has been nullified until the early of April of 2012 (for 1.9 years) and it has been in legal vacuum that can't prohibit outdoor assembly from being occurred at anytime. It may raise some legislative issues. This study analyzes the cases of the laws and legislation of foreign countries in regard to night-time outdoor assembly and proposes a direction to improve the Article 10 of the "Assembly and Demonstration Act". Germany does not have a statute on night-time outside assembly and the UK does not legislate against such matter but controls assembly and demonstration by granting the police a range of discretion. The US federal government does not have a law concerning assembly and demonstration, while the state or local governments have some provisions in regard to such matter. However, when a demonstration or assembly does not follow the conditions that are reported in advance or becomes illegal, the law enforcement agency including the police responses even stricter than Korea does. There are a few countries which have a law putting the time limit to night-time outdoor assembly including France, Russia and China. For example, France bans an outdoor assembly after 11 at night and Russia bans it from 11pm to 7am. China puts time limit on night-time outdoor assembly from 10pm to 6am with exception. Since China is a communist country where the freedom of press, assembly and demonstration struggles, the case of China may not be comparable but only for reference. Many other countries do not have a specific provision limiting night-time outdoor assembly but are very strict against illegal and violent demonstrations in order to maintain the social order as well as to secure the freedom of assembly. In conclusion, the study proposes to put flexible time limit to outdoor assembly in Korea. The suggestion for night-time outdoor assembly is to put a different time limit between spring and summer time and autumn and winter time. An outdoor assembly may be prohibited from 11pm to 5am during spring and summer from April 1 to September 30, and from 11pm to 7am during autumn and winter from October 1 to March 31.