장애인 이동권 확보 집회･시위의 자유 보장을 위한 변론: 서울중앙지법 2022. 10. 18. 2021고단5783 판결 비평

Abstract

Freedom of assembly and demonstration is indispensable for the maintenance of democratic society. Through this Freedom minorities can communicate with other fellow citizens, who have different views. With this process minorites have opportunity to change the social dominant view, and though their demand isn’t accepted, they can accept the society, in which they belong, because they still haver possibility to change dominant views in the future. Likewise for disabled people right of mobility is essential not only for their daily life, but also for the realization of their fundemental rights, such as general personality right. Nevertheless dicision of Seoul District court on 2022/10/18 doesn’t take these points into consideration at all. The court has decided, that the action that representative person of disabled people’s alliance tied his body with chain to a bus as demonstration method for the right of mobility, was illegal. So the court did state, “this kind of action is not allowed during demonstration, because it corresponds to “force” of obstruction of business in korean criminal code”. But the korean constitution and demonstration law protect exercise of force for the purpose of demonstration itself, so it is legally allowed, if it is not severly unpeaceful or violent. His action took just 15 minutes, and every 6 minutes next bus was planned to come at the bus stop. So long time korean government, local governments and fellow citizens has neglected disabled people’s right of mobility. They did such an action during demonstration for pursuing their minimum and fundemental right as a last measure. Police cannot use police law’s measures mindlessly during demonstration, though it brings about some hinderance at the perspective of police law. It is called shield effect of demonstration law toward police law, and it is result of the fair comparison of interested parties’ constitutional fundemental rights. A korean judical precedent has decided, that exercise of force in the process of strike may not be equally valued as exercise of force in criminal obstruction of business without any consideration of fundemental labor rights. The court of this case must consider this points, and explain concretly to the accused and the citizen, why his action in the process of demontration is guilty. But the court didn’t. It cannot but to be legally criticized. And for the protection of freedom of assembly and demonstration it is not proper to criminalize its organizer’s offence of duty to report to police. We must get out of our mind, that attempt to remove resistant nature of democracy put our democratic society in danger.