장애인 이동권 시위에 대한 헌법적 고찰: 지하철 탑승 시위 중 위력에 대한 논의를 중심으로

Abstract

Disabled groups are carrying out ‘subway demonstrations’ as a means of protesting against the state power that has ignored this for decades, even though it is the state’s duty to guarantee the disabled’s right to move. The ‘subway riding protest’, which advocates guaranteeing the right to move for the disabled, is causing social conflict between the disabled and non-disabled people by causing inconvenience to the public and interfering with subway operations. In this study, through previous research, I discussed whether the right of move for disabled persons is a basic right guaranteed under our constitution, reviewed the constitutional function of freedom of assembly, and reviewed restrictions on freedom of assembly and the patience obligations of ordinary citizens according to the exercise of freedom of assembly. In this process, the government should determine how to view and sanction the collective action and exercise of power that inevitably accompanies during assemblies and demonstrations from the perspective of guaranteeing freedom of assembly. Due to their nature, assemblies and protests use power in a way to express their claims to the outside world, so if the display of power does not significantly infringe on the maintenance of order or the legal rights of ordinary citizens, this should be guaranteed as freedom of assembly. In particular, when the state is neglecting its obligation to guarantee the right of movement for the disabled, which is a fundamental right under the constitution, it is difficult to interpret the ‘subway demonstration’ held to protest this as exceeding the scope of freedom of assembly or to treat it as a crime of obstruction of business under the criminal law.