Violation Of Fundamental Rights Research Articles

Die Literaturautonomie im deutschen Rechtssystem. Grenzen, Widersprüche und literaturtheoretische Potenziale

Abstract So far, the question regarding literature’s autonomy has predominantly been discussed from a poetological and historical perspective, with legal manifestations and possibilities of aesthetic autonomy usually being neglected by literary theory. However, in no other area than in (German) jurisprudence it becomes more evident that the concept of an autonomous literary practice, or more precisely the attempt to guarantee it legally, is highly challenging and therefore comes with restrictions. On the one hand, literary practice is legally regarded as a free and autonomous social subsystem. On the other hand, it can easily lead to violations of fundamental rights, meaning that the freedom of art cannot be considered unrestricted and autonomous on a closer look. In the following, the legal challenges of guaranteeing an unregulated literary practice will be discussed based on two fundamental legal rights, namely the freedom of art and copyright laws. The discussion proves to be significant for literary studies as well, as the legal tensions that are connected to the concept of literary autonomy have an influence on the practice of literature and thus also affect its theoretical reflection in literary studies and criticism. Because autonomy can mean several things, it is necessary to define the term ›autonomy‹ as used in this article first. After clarifying the concept of autonomy for the literary context, the focus lies on the legal discourse: The legal regulations in Germany regarding freedom of art and copyrights are first presented individually. Following this, the respective difficulties in guaranteeing the aforementioned legal rights are explained. A closer look will reveal that collisions are unavoidable, and that freedom of art and copyright laws sometimes even happen to be mutually exclusive. The challenges of literature’s autonomy in legal terms becomes particularly apparent by presenting the following two potential conflicts: The first conflict concerns collisions between freedom of art and a legal right of constitutionally similarly high rank, such as personal rights. The second potential conflict demonstrates why the freedom of art can hardly ever be reconciled with copyright provisions. The first case illustrates that the freedom of literary practice sometimes collides with other legal interests and can therefore be restricted, while the second one proves that a self-contradiction within the legal system exists when it comes to the notion of unrestricted autonomy. The first conflict is discussed by revisiting the decision of the German Federal Constitutional Court regarding Maxim Biller’s novel Esra in 2007. The decision, albeit highly controversial, helps to understand why legal barriers are sometimes imposed on works of literature. Additionally, the Esra case shows the legal difficulties of enforcing a ban on novels without fundamentally calling into question the freedom of art. This is also demonstrated by the votes of the dissenting judges at the Federal Constitutional Court which further illustrate the irresolvable challenge between guaranteeing not to impose any legal restrictions on the practice of art, but sometimes doing so whenever the freedom of art collides with personal rights. As a second example, the potential conflict that can arise when using the technique of literary collage or any other that involves adopting elements of existing literary or non-literary texts is discussed. Such a case is even more likely to result in a legal dilemma as there generally is a tension between freedom of art and copyright laws: although copyright laws can be subsumed under freedom of art and even serve as supportive of it, insofar as they aim at protecting the author as the intellectual owner of a work, they are not always beneficial to the freedom of art. This is best exemplified by the aesthetic technique of literary collage, for which the implementation of elements from other texts and media is characteristic and thus might easily conflict with copyright provisions. The example of literary collage demonstrates that without legal regulations some aesthetic practices might run the risk of infringing the respective copyrights as soon as an existing work of art is utilized partially for a new one. This article concludes that the notion of literary autonomy shows to be self-contradictory when discussed from a legal perspective. This observation is not irrelevant for literary theory, insofar as literary autonomy, understood as an unregulated literary practice, thwarts its promise of freedom. As this article argues, the idea of literary autonomy therefore needs revision in literary studies, not least because of its challenging legal dimension.

Crimes Against Humanity: A Human Rights Perspective

This research article explores the multifaceted concept of crimes against humanity through the lens of international human rights, examining its historical origins, legal framework, and contemporary challenges. Tracing the evolution from the aftermath of World War II to the establishment of the International Criminal Court (ICC), the paper emphasizes the human rights implications of these crimes, elucidating the violation of fundamental rights on a mass scale. By analyzing recent developments and case studies, the article underscores the imperative of a global commitment to justice, accountability, and the protection of human dignity in the face of crimes that transcend national boundaries. The research contributes to the ongoing discourse on the intersection of human rights and crimes against humanity, advocating for a holistic approach that integrates legal principles with universal values.

Education in the prison system: an analysis of the Amazonas prison system

This study investigates the effectiveness of public education policies for people deprived of their liberty in the state of Amazonas, in the context of a systemic crisis recognized by the Federal Supreme Court (STF) as an unconstitutional state of affairs. The research was motivated by the need to examine the strategies implemented to tackle the widespread violations of fundamental rights within the prison system, with a special focus on education as a means of resocialization. The central objective was to evaluate the implementation and effectiveness of public education policies aimed at inmates and former inmates, with a focus on the state education plan for the Amazonas prison system. Using documentary analysis and a literature review, as well as statistical data provided by the National Penitentiary Department (DEPEN), this study identified significant advances in the provision of educational activities, evidenced by the increase in the number of inmates engaged in educational programs. However, the research revealed important gaps, such as the lack of precise indicators for evaluating policies and the need to guarantee the quality of the education offered. It was concluded that, despite quantitative progress, qualitative and strategic improvements are needed if education in the prison system is to effectively promote the resocialization and social reintegration of individuals. Future research suggests analyzing the impact of these policies on reducing recidivism and improving the quality of life of inmates, as well as comparing educational practices between different states to identify successful models.

THE PLACE AND ROLE OF WOMEN IN THE CATHOLIC CHURCH: A STUDY BASED ON THE CODE OF CANON LAW AND THE CODE OF CANONS OF THE EASTERN CHURCHES

Although Pope John Paul II taught through his apostolic letter Ordinatio Sacerdotalis (1994) that the Catholic Church is unable to ordain women to priesthood, the Catholic Church gives a special place to women in it, and a survey of the Code of Canon Law (CIC 1983) and the Code of Canons of the Eastern Churches (CCEO 1990) shows that there is a marked improvement in the Catholic Canon Law regarding the place and role of women in the Catholic Church. Whereas the Pio-Benedictine Code (CIC 1917) did not consider men and women as having the same rights and duties in the Church, the fundamental equality of men and women is acknowledged in the canons of the new Codes. The author argues that there is no violation of fundamental rights of women in the prohibition to ordain women to priesthood. At the same time, the article highlights the clarion call the Pope Francis to have a special role for the “Feminine Genius” within the Catholic Church.

Morals and Ethics in Counterterrorism

Political leaders, philosophers, sociologists, historians, political scientists, law scholars and economists approach terrorism in diverse ways, especially its definition. Politicians assign the meaning to the term terrorism that best suits them. Political scientists analyze the actions of those in the geopolitical framework. Moral philosophers look at terrorism from the viewpoint of fairness. Historians make a comparative assessment of the phenomenon through its evolution over time, and scholars of law simply dissect counterterrorism measures and assess their consistency with customs and current legislation. Sociologists stress the importance of culture, social relationships and social interactions. Eventually, politicians and lawmakers are not immune to the influence of the common ethics and morals of their own societies and the uses and habits of their own cultures, including religious aspects. Morals and ethics relate to “right” and “wrong” conduct; the first provides guiding principles, and the latter refers to rules provided by an external source, e.g., codes of conduct in workplaces or principles in religions. While morals are concerned with principles of right and wrong, ethics are related to right and wrong conduct of an individual in a particular situation. Ethics, morals and religion are intertwined in the antithetical principles “good and evil.” This work aims to scrutinize the crucial concept of just and unjust war, and just and unjust combatants, and to elaborate on some critical moral and ethical elements within the modern understanding of the interplay between terrorism, counterterrorism, fundamental human rights, and international humanitarian law. Through the examination of all pertinent theoretical positions the paper seeks to shed light on the limits of the use of force and the justification of the violation of fundamental rights in the War on Terror.

Possibilities and Approaches of European Court of Human Rights and Court of Justice of the European Union in Fundamental Rights Protection in the Context of Environmental Litigation

Two judicial bodies, but both without right to protect the environment established. This is also how the coexistence of the two important judicial bodies located in the European area could be briefly characterized. The European Court of Human Rights and the Court of Justice of the European Union were created for different purposes, but their jurisprudence in the area of environmental protection and the protection of people's lives and health from the negative consequences of climate change overlap more than it might seem at first sight. We find certain similarities in terms of ensuring a certain degree of protection of fundamental rights in the context of the environment. The European Court of Human Rights has a priority in terms of the protection of fundamental rights in Europe, but in the field of the environment it faces several problems. Especially when we are talking about the protection of rights for future generations, where there is no direct victim or direct violation of fundamental rights, only a very high risk of their violation. On the other hand, the Court of Justice of the European Union has a much greater assumption of effectiveness, which has the potential to change the legislation of the member states and thereby indirectly ensure the protection of people's lives and health. Recently, the activity of the European Commission has been increasing in the interest of achieving climate neutrality, and this also means greater pressure on the states in the interest of the complete and correct transposition of European regulations in the field of the environment. In case of deficiencies, the European Commission can intervene by filing a lawsuit according to Article 258 of the TFEU, and achieve the required remedy. Although, such a procedure is not primarily aimed at the protection of fundamental rights, the positive impact on their protection cannot be neglected.

Doctors’ perception on the infringement of basic rights and the collapse of essential medical services following CCTV installation in the operating rooms

Background: On September 25, 2023, the law requiring the mandatory installation and operation of closed circuit television (CCTV) in the operating room went into effect. In this study, doctors’ perceptions of the law were re-examined on September 23, 2023 (just prior to the law’s enforcement), following a survey conducted on July 21, 2021 (before the re-examination of the bill). This study aimed to confirm doctors’ perceptions of the infringement of fundamental rights of this law, the collapse of essential medical services due to the avoidance of surgery, and other concerns and priority solutions ahead of the law’s enforcement.Methods: The survey was conducted from 8 to 18 September, 2023, by the Korean Medical Association Doctor Survey; a total of 1,267 doctors responded to the survey.Results: Out of 1,267 respondents, 1,156 (91.2%) said “yes,” and 111 (8.8%) said “no” to issue concerning constitutional violations of fundamental rights–such as the freedom of medical personnel to practice their profession–and moral rights. A total of 1,149 (90.7%) respondents agreed with the concern regarding the collapse of essential medical care due to the avoidance of surgeons.Conclusion: Sufficient guidance should be provided, along with guidelines that provide explicit standards for the installation and operation of the CCTV systems, along with safety management measures. Medical disputes and the heavy legal responsibility of medical personnel are the main reasons as to why essential medical care collapses, given the avoidance of surgery. Medical disputes should be avoided in order to prevent essential medical care collapse, as the video is used as evidence for criminal sanctions.

THE ARMENIAN CONFISCATION LAW OF 2020CONSIDERING THE EUROPEAN STANDARDS

The subject of this paper is a synthetic presentation of the basic standards of the Council of Europe on the criminal measure of confiscation of property, notably its extended forms. Due to the considerable severity of this mechanism and the potential violations of fundamental rights that might result from it, extended confiscation has repeatedly been the subject of ECtHR jurisprudence. The text presents the conclusions drawn from the basic rulings of the Strasbourg Court in this regard. Against this background, the author presents the essential elements of the extended confiscation system recently adopted in Armenia. A comparison of these models leads to the conclusion that the Armenian model goes far beyond the standards of the Council of Europe, which raises doubts about its compatibility with the body of human rights, as decoded in the ECHR and articulated by the ECtHR. The author attempts to predict the possible consequences of such a confrontation.

Eradicating Boko Haram Insurgency in Nigeria through the Complementarity of the ICC

Kidnapping, hostage taking, armed robbery, and bomb and gun attacks, among other terrorist activities perpetrated in the Boko Haram insurgency, especially in the Northeastern part of Nigeria, have led to wanton loss and destruction of life and property, violations of fundamental rights, socio-economic dislocation, and fear of insecurity generally. War crimes and crimes against humanity have allegedly been committed in the insurgency. The study aims to ascertain the best approach for the International Criminal Court (ICC) to exercise complementary jurisdiction towards eradicating the Boko Haram insurgency in Nigeria. While revealing the limitations of the Nigerian domestic system and pointing out the procedural and substantive flaws of the ICC in the fulfilment of its mandate, the paper recommends proactive complementarity in effectively tackling the insurgency. It concludes by advocating for domestication, better cooperation, and collaborative strategies with the international community to eradicate the Boko Haram insurgency in Nigeria.

The problem of ensuring freedom of conscience and religion by law enforcement agencies of Scandinavian countries in modern conditions: public law aspect

The article deals with the problems of legal regulation of relations in the Scandinavian states in the field of freedom of conscience and religion. The reason for addressing this topic was the public actions on the burning of the Koran that took place in Denmark and Sweden in 2023, which demonstrated the inability of law enforcement agencies and civil society of the Nordic countries to prevent a violation of public order, as well as the violation of fundamental rights and freedoms of the individual. The object of the study was both the legislation of the Kingdoms of Denmark and Sweden regulating relations in the religious sphere, and law enforcement practice. The article is based on the latest empirical data and research results, most of which have not been translated into Russian. As a result of the analysis of the current legislation of the Scandinavian states, it was concluded that the norms of public law do not correspond to the level and nature of public relations in the religious sphere. The norms of international and European law incorporated into the national legislation of the Scandinavian countries are also ineffective. An additional obstacle is the traditions of a society that recognizes everyone's right to free expression of opinions and thoughts. In order to prevent public events in the religious sphere that are openly extremist in nature, it is necessary to modernize the relevant legislation of the Scandinavian states. At a minimum, it is necessary to expand the powers of law enforcement agencies to ban such events as threatening the national interests of the Nordic countries.

Proportionality of restrictions on the dissemination of information in the conditions of the military regime

The article analyzes the issue of proportionality of the limitation of the dissemination of information in the conditions of the military regime. The Constitution of Ukraine and international documents provide for fundamental rights that require protection. Criminal law provides such protection by providing for criminal liability for violations of fundamental rights. At the same time, the realization of some rights has peculiarities and limitations due to the conditions of the military regime. In particular, the constitutional right to freedom of thought and speech, to the free expression of one's views and beliefs (Article 34 of the Constitution of Ukraine), as well as the right to freedom of expression, provided for in Art. 10 Convention on the Protection of Rights and Fundamental Freedoms of 1950.
 Proportionality of establishing criminal liability for dissemination of information about sending, moving weapons, armaments and military supplies to Ukraine, movement, movement or placement of the Armed Forces of Ukraine or other military formations formed in accordance with the laws of Ukraine, committed in conditions of war or a state of emergency from the point of view of security.
 It has been established that the information component in war occupies a significant part, especially in the modern conditions of the information society. If the media will show false, unverified, erroneous information, it can be used as a means of manipulation. That is why information wars are so dangerous.
 Last but not least information technologies can be used both to commit criminal offenses, including those related to terrorism and war propaganda, and to combat crime. In particular, the relevant instruments were developed by European legislation. These instruments may violate some human rights, in particular Articles 10 and 8 of the Convention. It is substantiated that in the conditions of war, such concessions in freedom are an acceptable price for ensuring security.

Performing secrecy: hiding and obfuscation in Frontex’s pushbacks scandal

ABSTRACT In this paper, I investigate how non-knowledge about border violence is maintained through secrecy. I do so by focusing on Frontex's maritime pushback scandal. The first argument I develop is that secrecy takes the form of hiding and obfuscation. Hiding is straightforward. It implies that information about pushback is withheld from oversight bodies and the public to avoid criticism and disciplinary measures. Obfuscation is more complex. It refers to the production of uncertainty, ambiguity and confusion about a policy or practice. Differently from hiding, obfuscation results from the disclosure of contradictory and misleading information about pushback, as well as from attempts to confuse the public debate by raising convoluted arguments that question the very understanding of pushbacks as illegal. The second argument I develop is that transparency can be implicated in the production of secrecy. While transparency and secrecy are typically seen as binary opposites, I will explain how mechanisms implemented to render Frontex's operation more transparent have been used to hide pushbacks and obscure the Agency's responsibility for violations of fundamental rights.

유럽인권법원의 판례상 통신감청에 관한 연구

The pace of progress in digital technology is difficult to predict. At the same time, the growing threat of serious crime raises questions about the tension between “individual freedom” and “public safety” more acutely than ever. The conflict between the two is clearly revealed in the discussion of the state's surveillance of communications. The European Court of Human Rights has so far guaranteed the right to respect for privacy “offline” and the right to freedom of expression. In particular, it is noteworthy that in the ruling on May 25, 2021, the judgment was made in connection with the current situation transferred to “cyberspace”. Until recently, the judgments of the European Court of Human Rights regarding the Internet have not been so prominent. However, it is no exaggeration to say that the European Court of Human Rights is now facing new challenges due to technological advances. Data movement on the Internet transcends national borders, and data theft by government agencies is possible due to the opaque route. There is no question that the scope of surveillance is much broader and that it gives access to the core areas of privacy. The European Court of Human Rights stated that wiretapping is possible only when there is “serious suspicion against the person being monitored.” General and unrestricted surveillance violates the European Convention on Human Rights. Above all, it cannot be denied that in recent years, it is inevitable to grant wide-ranging powers to intelligence agencies to respond to threats to national security. As is well known, it would be difficult to imagine even a moment of everyday life freed from today's information and communication technology. Against the background of this digital stage, techniques that ensured encryption and anonymity, such as the dark web and telegram, appeared. Therefore, it is self-evident that finding and responding to clues in the field is virtually impossible. In line with this situation, it is necessary to legally prepare appropriate countermeasures for the security authorities. At the same time, the European Court of Human Rights emphasizes that legal and technical safeguards must be secured to prevent abuse and violation of fundamental rights. Ultimately, in order to collect information related to serious crimes or acts of terrorism in today's information and communication environment connected to the Internet of Things, corresponding regulations must be prepared. This is the principle of equality of arms. From this point of view, the general authority to collect information regulated by the Act on the Performance of Duties by Police Officers and “Regulations on Information Collection and Processing” is not only incompatible with today's digital information and communication environment, but it is difficult to avoid criticism that it is a way that is far behind in comparison. In future legislation, disclosure and non-disclosure (secret) means should be separated, and in the case of non-disclosure, stricter requirements should be set in consideration of the high degree of violation of fundamental rights.

The Representation of Class Conflict in Cinema and Violation of the Fundamental Rights: A Study in the Context of Satyajit Ray’s “Sadgati”


 
 
 This study focuses on the representation of the cast system in Satyajit Ray’s cinema (Sadgati) and the violation of Fundamental Rights. In this study, the researcher has used visual analysis (mise-en-scene) and three-dimensional critical discourse analysis to examine the text, tone and expression, and socio- cultural background of the different characters and the violation of the Fundamental Rights of a man who is suffering from untouchability and exploitation. Dr Ambedkar devoted his life to the welfare and empowerment of the marginalized class. He desired to bring equality within the social structure, where no space for discrimination on grounds of religion, race, caste, gender, and place of birth. This study attempts to identify the reflection of Ambedkar’s ideology in the film “Sadgati.”
 
 

Analysis of Custodial deaths in Western Odisha

Background: Death in custody is often associated with allegations of physical abuse by the police or jail authorities. Questions are always raised about violation of fundamental rights of a prisoner. Aims: To study different epidemiological and medico legal aspects of custodial deaths. Material And Methods: This is a öve year retrospective study based on medicolegal records of custodial deaths. Result: All the cases were male. As per manner of death 86.5% of cases were natural deaths while 13.5% of cases died due to unnatural causes. Age group of these cases were between 19 to 90 years. Maximum number of cases (29.8%) is between 51-60 years. Majority of deaths occurred in the hospital accounting for 97.29% of cases except one hanging death which occurred in police station. Majority of cases (91.9%) were in jail custody. In this study most common cause of death is chronic kidney disease which is found in 21.6% of cases. With respect to conviction status, 78.4% of cases were under trial prisoners while rest 21.6% were convicted. Conclusion: Majority of deaths occurred due to natural causes. Proper care should be taken to reduce morbidity and mortality of prisoners.

The origin of the guardianship action against financial and/or banking entities

The guardianship action is a mechanism for the protection and guarantee of fundamental constitutional rights. Its origin is delimited by what is established in article 86 of the national constitution, and developed by Decree 2591 of 1991 and by the repeated pronouncements of the Constitutional Court that have been issued on the matter. Specifically, the constitutional court has developed a jurisprudential line related to the origin of the protection action against individuals who provide a public service, framing within this issue what is related to the origin of the protection action against banking and/or financial entities, who, by showing a degree of superiority in the contractual relationship with users, may commit abuses or make decisions that affect fundamental constitutional rights. Although there have been some pronouncements from the highest constitutional body, there is no easily understandable academic work among ordinary society that makes it possible to accurately identify when the protection action is appropriate against this type of individuals who provide a banking and financial service, for which reason It is necessary to address the subject of study, for which we will initially delimit the guardianship action conceptually, later its origin against individuals will be explained and then, based on inductive reasoning, its origin will be identified against banking and financial entities, managing to demonstrate what are the problematic situations that can generate the violation of fundamental rights and what are the most violated or thre

IMPACT OF ARMED CONFLICT ON THE YOUTH OF KASHMIR

For nearly three decades, Kashmir has "been suffering a chronic socio-political turmoil. Kashmir's social fabric has been torn apart by the ongoing fighting, which has impeded its physical infrastructure as well (creating social, economic and psychological problems). The strife in Kashmir has had devastating impacts, especially on the young people of the region. This report emphasises the extent to which the violence has impacted the lives of young people in Kashmir and their opportunities for gainful employment. As well as the impact that "violation of fundamental rights" has had on young people in Kashmir.

Restoring Faith in EU Values: Mutual Trust and Systemic Deficiencies in the Member States

In the evolving context of European Union public law, mutual trust has risen as a pivotal structural principle, anchoring the horizontal relationship among EU Member States, particularly in areas falling outside the scope of application of EU law. Its significance has expanded, moving beyond just safeguarding fundamental rights to fully embracing the broad spectrum of values articulated in Article 2 TEU. Informed by the mutual accountability of Member States, this principle is instrumental in assessing their commitment to the values delineated in Article 2 TEU. This article offers to differentiate between two scenarios: instances where mutual trust is undermined by violations of fundamental rights, and those where it is challenged by breaches of structural values, such as democracy and the rule of law. The article posits that systemic deficiencies in a Member State’s adherence to the EU’s structural values threatens the essence of mutual trust, demanding a reconsideration of the manner of application of this principle. Through the lens of the transformations following the Lisbon Treaty and contemporary hurdles this article underscores mutual trust’s crucial role in ensuring Member States’ constitutional fidelity to EU structural values. The article concludes by championing a nuanced application of the mutual trust principle – a stance that robustly preserves the core of Article 2 values, quintessential to European identity, without compromising fundamental rights or overlooking other EU public interests.

The State Liability due to the Unconstitutional Presidential Emergency Decree

대법원 2010. 12. 16.ﾠ선고ﾠ2010도5986ﾠ전원합의체 판결; 2013. 4. 18.ﾠ자 2011초기689ﾠ전원합의체 결정; 2013. 5. 16.ﾠ선고ﾠ2011도2631ﾠ전원합의체 판결 은 유신헌법 시행 당시의 대통령 긴급조치가 위헌이라고 하였다. 그런데 대법원 2014. 10. 27. 선고 2013다217962 판결은, 긴급조치 제9호에 의하여 수사를 진행하고 공소를 제기한 수사기관의 직무행위나 유죄판결을 선고한 법관의 재판상 직무행위는 공무원의 고의 또는 과실에 의한 불법행위에 해당하지 않는다고 하였고, 대법원ﾠ2015. 3. 26.ﾠ선고ﾠ2012다48824ﾠ판결은, 대통령의 긴급조치 발령이 국민 개개인에 대한 관계에서 민사상 불법행위를 구성한다고는 볼 수 없다고 하였다. 그러나 대상판결인 대법원 2022. 8. 30. 선고 2018다212610 전원합의체 판결은 위 두 개의 판례를 변경하여, 긴급조치로 인한 국가배상책임을 인정하였다. 이 글에서는 위 2018다212610 전원합의체 판결을 분석한다. 그 분석의 결과는 다음과 같다. 첫째, 위 판결은 대통령의 위헌인 긴급조치 발령을 국회의 위헌법률 제정과 다르게 보았다. 그러나 국가배상책임의 성립에 관하여는 양자를 같이 취급하여야 한다. 둘째, 위 판결은 대통령의 긴급조치 발령 자체가 독립적인 불법행위가 되는지에 대하여는 명확한 태도를 밝히지 않았다. 그러나 당시 박정희 대통령은 긴급조치가 위헌임을 알면서도 긴급조치를 발령하였으므로 고의가 있었고, 따라서 대법원으로서는 박정희 대통령의 긴급조치 선포가 불법행위임을 명확히 하였어야 할 것이다. 셋째, 위 판결의 다수의견은 긴급조치에 근거하여 유죄판결을 내린 법관들의 불법행위책임에 대하여는 언급하고 있지 않다. 당시 유신헌법 제53조 제4항은 긴급조치에 대한 사법심사를 배제하고 있었으므로, 법관들의 불법행위책임은 인정되기 어렵다. 넷째, 위 판결은 광범위한 다수 공무원이 관여한 일련의 국가작용에 의한 기본권 침해에 대해서 국가배상책임의 성립이 문제되는 경우에는 전체적으로 보아 객관적 주의의무 위반이 인정되면 충분하다는 이유로 국가배상책임을 인정하였다. 그러나 유신헌법 제53조 제4항을 고려하면 대통령 아닌 개별 공무원들의 불법행위를 인정할 수 없고, 단지 다수 공무원이 관여하였다고 하여 국가배상책임을 인정한다는 것은 논리적으로 맞지 않는다. 결국 대상판결의 결론은 수긍할 수 있으나, 그 이유 설명은 설득력이 부족하다.On December 16, 2010, the Korean Supreme Court, by its en banc decision, declared that Presidential Emergency Decree No. 1, enacted on January 8, 1974 was unconstitutional. In 2013, another series of en banc decisions by the Court held that Presidential Emergency Decree No. 9, enacted on April 3, 1974 and Presidential Emergency Decree No. 4, enacted on May 13, 1975 were unconstitutional. However, the Korean Supreme Court decided on October 27, 2014 decided that the officers act of investigating and prosecuting according to the Presidential Emergency Decree No. 9 did not constitute torts. And The Supreme Court decision on March 26, 2015 opined that the enactment of Presidential Emergency Decree No. 9 by the then president did not constitute a tort. Recently, however, Korean Supreme Court en banc decision on August 30, 2022 overruled theses 2 decisions and recognized the Korean Government’s state liability because of the Presidential Emergency Decree. This article analyzes this en banc decision. Firstly, this decision treated the unconstitutional Presidential Emergency Decree differently from the unconstitutional law by the legislature. However, in relation to the state liability, these two must be treated equally. Secondly, this decision did not expressly stated whether the proclamation of the Presidential Emergency Decrees by the President Park Chung-hee was an independent tort or not. However, President Park Chung-hee proclaimed the Presidential Emergency Decrees, knowing the unconstitutionality of the Decrees. So the Supreme Court should make it clear that the proclamation of the Presidential Emergency Decrees was an independent tort by itself. Thirdly, the majority opinion denied the responsibility of judges who convicted defendants according to the Presidential Emergency Decrees. This result can be accepted, as the Article 53 Paragrph 4 of the Constitution at that time (the so called Yushin Constitution) excluded the judicial review of the Presidential Emergency Decrees. Fourthly, this decision opined that in cases where the violation of fundamental rights resulted from the state’s continuing acts by multiple public offcials occurred, the state liability could be recognized if the overall breach of objective duty of care existed. However, it is not logical to recognize the state liability on the ground that multiple public officials were related, even though torts of the individual public officials could not be ascertained. So the result of the decision is acceptable. However, the reasoning is not persuasive.

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

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’.