적법한 집회･시위에 대한 경찰권 행사에 관한 연구

Abstract

This article stems from the question of who should be exercised when police authority is to be put in place due to certain reasons, such as assault and intimidation, after multiple assemblies and demonstrations have all been legally held. In particular, in the case where multiple assemblies are held and the assembly of one side causes the assembly of the other side to be illegal, the constitutional basis for determining whether the police power should be exercised against the group that caused the violence or intimidation or the group that committed the violence or intimidation are interested in Traditionally, it can be said that discussions on the freedom of expression have been discussed on the content or scope of protection from the viewpoint that the intervention of the ‘state’ should be minimal, centering on the speaker, the subject of expression. This is explained by the fact that all kinds of expression that contribute to the discovery of truth must be guaranteed in principle according to the theory of the ‘free market of ideas’, and even though it differs from the majority opinion, the right to express itself cannot be denied. On the other hand, today's speaker's right to express begins with extreme ‘hate speech’, ‘false information’ (fake news), and furthermore, in the realm of advertisements seen on buses and subways (in the case of the so-called ‘The Captive Audience Doctrine’). The need to consider the rights of ‘listeners’ is also being raised. In particular, when a counter-assembly is a problem, there is a relatively high possibility that the harm to expression cannot be resolved by waiting enough time, so there is room for a modified interpretation of the right to plural assembly. Regarding this background, this article briefly introduces the results of previous studies on the German case, followed by the ‘Heckler's right to veto’ theory is being considered. While raising the epistemology that protection of listeners who have different positions from those of the speaker is also necessary, ‘Heckler's right to veto’, which means ‘the right to refuse to receive the speaker's expression’, has been established in the United States. I would like to look at how it is being discussed in the area of assembly and demonstration, and pay attention to the fact that this theory can be an opportunity to bring about a change in the legal theory centered on the rights of speakers.