집회시 경찰의 사전차단조치에 대한 문제점과 개선방안 - 집시법상 절대적 집회금지규정과 금지통고제도 및 이의신청제도를 중심으로 -

The Notice which the Law on Assembly and Demonstration(hereafter "L.A.D.") provides has the Notice to be got the acceptance, so the Head of the police station should make an examination for the form of the condition of the notice. So the Head should determine the prohibition notice for the assembly as the discretionary act which has Zero option, actually like the tied administrative action. In this point of view, in order to stop the transforming of the pre-notice rule of the de facto L.A.D. into the license system which has been prohibited by article 21, clause 2 of the Constitutional Law, before giving the prohibition notice, the competent Head Officer should give the limitation notice to the parties, which can replace the time or the place or the way or the means, machines of the another ones in order to keep the liberty of the participants even if the assembly satisfy the conditions of the prohibition notice rule of L.A.D. In this way, the head can avoid breaking the principle of balance. And article 5, clause 1 and number 2 of the L.A.D. which says that the police can prohibit the assembly absolutely should be revised in order to make the condition obvious for controlling the abuse of police power. Also, the demurrer system to the prohibition notice which the L.A.D. article 9, clause 1 provides should be substantially taken by the present advisory committee for the assembly and demonstration as the decision agent so as to make the fair decision for the demurrer of the host of the assembly.