현행 「집회 및 시위에 관한 법률」상의 옥외집회 금지장소에 대한 헌법적 고찰

Abstract

In a democratic constitutional state, assemblies function as the realization of democracy and the realization of political expression in that they are a means of public participation in the process of political communication. In relation to democracy, assemblies function as a supplement to representative democracy. And assemblies also function as a means of realizing pluralism in that they inform the majority of the opinions of the minority and reflect them within the national community. When interpreting assemblies as a connecting channel between the national will and the people's will, in order to effectively realize the freedom of assembly, assemblies must and should be held in the most efficient way to convey the will of the people. In this case, as the embodiment of the freedom of assembly, the selection of the meeting place is directly and closely related to the purpose of holding the assembly, and it can be said to be the means that can deliver the purpose most effectively. The current 「Assembly and Demonstration Law」 considers the constitutional significance of freedom of assembly within a democracy and the importance of choosing a meeting place in realizing freedom of assembly. Accordingly, the Assembly and Demonstration Act stipulates the contents of prohibited places in the form of permitted in principle and prohibited in exceptional cases. Article 11 of the Assembly and Demonstration Act stipulates a specific place as a place where gatherings are prohibited. However, it is intended to protect the freedom of assembly thickly by defining it as a relative prohibited place rather than an absolute prohibited place. Regarding the interpretation of these prohibited places, the place where assembly is prohibited today is the ‘President’s Office’. Article 11 of the current Assembly and Demonstration Act stipulates only the “President’s official residence” as a prohibited place for outdoor assembly, but not the President’s office. Accordingly, a question arises as to whether the President’s office can be derived from the President’s official residence stipulated in Article 11, Paragraph 3 of the Assembly and Demonstration Act. However, according to the literal interpretation and the systematic interpretation of President’s official residence centering on Article 11 of the Assembly and Demonstration Act, it is difficult to interpret that the President’s office is included within the scope of the President’s official residence. Although there is no provision for the Office of the President in the current Act on Assembly and Demonstration, the interpretation that restricts the freedom of assembly near the President’s office is a violation of the principle of statutory reservation or a violation of fundamental rights due to sluggish legislative omission. Therefore, establishing a clear standard for judging illegality by stipulating which places are prohibited by law has a major meaning in realizing freedom of assembly. If Article 11 of the Act on Assembly and Demonstration stipulates the President’s office along with the President’s official residence, this is to define both work space and non-work space for executive agencies. This type of regulation is also appropriate in that it has unity with the system of Article 11 of the Assembly and Demonstration Act for legislative and judicial institutions, which already stipulates work space and non-work space in harmony. In addition, if the President’s office, which is a work space, is separately stipulated, exceptions to the permission of assembly can be provided, such as the place for other work spaces stipulated in Article 11 of the Assembly and Demonstration Act. Reasons for this can be considered as ‘when there is no concern about interfering with the President's work’ and ‘when there is no concern that it will spread to a large-scale assembly or demonstration’.