경찰차벽의 법적 근거에 관한 고찰 - 헌재 2011. 6. 30 선고, 2009헌마406 결정을 중심으로 -

Abstract

On May 23, 2009, that former President Roh, Moo-Hyun passed away, the Chief of the National Policy Agency blocked the passage of citizens to Seoul Plaza by setting up a blockade with police buses, so called vehicles-wall, surrounding it, in order to protect such unlawful and violent rallies or protest in Seoul Plaza by the citizens for a memorial altar being set up at across Deoksugung Daehanmun. In response, some citizens(the complaints) filed a constitutional complaint on July 21, 2009 seeking a decision of unconstitutionality of such police action, arguing that the passage blockade by vehicles-wall infringed on their right to general freedom of action. In conclusion, Constitutional Court decided that the passage blockade violated the principle against excessive restriction and infringed on the complaints’ general freedom of action(2009Hun-Ma406, June 30, 2011). And he added that setting up the vehicles-wall by police could be admitted as the legal action and the last means to respond to only urgent, unequivocal and serious danger. The vehicles-wall by police are based on the Article 13(1) of the Assembly and Demonstration Act, Article 5 of the Act on the Performance of Duties by Police Officers(Prevention, etc., of Occurrence of Danger), and Article 6 of the same act(Prevention and Control of Crimes) etc. as the individual enabling provisions. Besides, the Article 2, 5, and 6 under the Act on the Performance of Duties by Police Officers etc. were discussed in various interpretation whether they could be the general enabling provisions. The Article 2⑦ of the same Act also can not be the general enabling provision because of only the office regulation. Therefore, in the legislative approach, the general enabling provisions besides the individual enabling provisions for the clarity of police enforcement and legal basis should be stipulated in order to secure the active police power responding to the high possibility of a unpredictable danger to the public.