‘집회 및 시위에 관한 법률’의 위헌성

The Assembly and Demonstration Act(referred to as “the Assembly Act” or “the Act”, hereinafter) is unconstitutional. This is what I intend to assert. This article aims at demonstrating that the Assembly Act per se can not be compatible with the freedom of assembly protected by the constitution and thus should be abolished, instead of being revised. For this purpose, I tried to verify the unconstitutionality of the Act in three dimensions: First, various regulations against freedom of assembly are unconstitutional because they have no constitutional ground under current constitution which, unlike previous constitutions, not only prohibits any license system against the peaceful assembly, but forbids any regulation amounting to violation of the essence of constitutionally protected freedoms and rights. Second, the Act violates the constitution because its main target is a peaceful assembly for political protest which forms the core of freedom of assembly. Also, the Act extremely curtails the scope of the freedom beyond constitutional limits. Third, the Assembly Act is incompatible with the constitution in terms of the means of regulation, since it grants unbridled discretion to the police and thus allows arbitrary enforcement of the law. Among examples of such discretion are the license system, total prohibition of the assembly in specific time and place without regard to its actual influence on the society, and prior prohibition of the assembly held by specific individuals or organizations simply for the concern of violence. This analysis clearly shows that the Act can contribute to the freedom of assembly and thus to democracy, only when it is abolished.