대통령 집무실 및 전직대통령 사저 인근에서의 절대적 집회금지를 규정한 집시법 제11조 개정안의 위헌성

Abstract

Recently, some members of National Assembly proposed an amendment to Article 11 of the ‘Assembly And Demonstration Act’ in order to ban on assemblies in the vicinity of the Executive Office of the President and former President's residence This paper will examine the constitutionality of this proposal.
 Absolute no-assembly zones have historically been used by military regimes as a means to curb citizens' freedom of assembly. These zones are generally thought to be unduly restrictive of freedom of assembly and do not pass the proportionality test. In fact, the Constitutional Court of Korea has ruled several parts of Article 11 of the Assembly And Demonstration Act unconstitutional.
 Before examining the constitutionality of this amendment proposal, we must first define the concept of “Presidential residence” in Article 11(3) of the Assembly And Demonstration Act. Taking into account the dictionary meaning of the term, the structure of Article 11 of the Assembly And Demonstration Act, and the guarantee of freedom of assembly, the term “presidential residence” refers to the living quarters of the President and his family.
 The absolute prohibition of all assemblies in the vicinity of the President's residence is aimed at protecting the constitutional functions of the President, and the absolute prohibition of all assemblies in the vicinity of the residence of former presidents is aimed at ensuring the personal safety of former presidents and the tranquility of their residences. These legislative objectives are legitimate. However, the above provisions uniformly prohibit all assemblies despite the fact that there is no need to regulate small and peaceful assemblies. Also, the legislative objectives can be achieved through the Assembly and Demonstration Act, the Criminal Code, and the Presidential Security Act. Therefore, these provisions violate the right to freedom of assembly. The amendments should not be passed.