집시법 위헌론 합헌론 ― 복면금지 등 집시법 개정 보완을 기대하며 ―

We are now on the doorstill of advance into the developed nation with the GDP of 10th level in the world. It is actually worth the focus of world's attention that our nation has progressed in such a miraculous growth of economy since the Korean war(1950). It is however too much regrettable that our culture on Assembly and Demonstration has the worst backward attitude in the world. Perhaps, owing to the deepened social conflict by short termed high growth, our country is really ‘the republic full of the unreasonable demand’, as referred inⅠ.3. of this article, by widespread unlawful demonstration of violence. It is hereafter the big problem in our society that has to be solved for the sake of the advance into the developed nation. It becomes futhermore hot potato since ‘candlelight demonstration’due to the ‘beef fluctuation’ of 2008. At this point watching the trend of the academic world, unconstitutionality of the current Law on Assembly and Demonstration has been suggested by junior scholars. And with it, I doubt that the constitutional appeal of citizen's groups and the advice decision of National Human Rights Committee of Korea on the Revision of the current Law on Assembly and Demonstration seem to be supporting the widespread unlawful demonstration of violence. Therefore, while disputing the unconstitutionality theory on the institution of assembly report and prohibit notice they principally insist, I emphasized the constitutionality of the current Law by comparing with the institution of the developed countries. That is to say, the freedom of Assembly and Demonstration is guaranted by almost prior permission system even in the developed countries, because it is basically characteristic of collectivism that always can offer a big danger to the public peace and order. Therefore, it is conclusively the problem (binding discretion not arbitary discretion) that the principle of ‘clear and present danger’must be strictly treated by the competent authorities. Although this article cannot treat due to the limit of the number of sheets, the problem of our society seems to be nowadays that each group of interests goes out unconditionally to the street to realize its intention ignoring police decision(the notice of prohibit or limitation as the binding discretion) and its law enforcement too easily. Furthermore, the unlawful demonstrations of violence tend to increase and ralliers wearing mask grow more violent. Therefore, this article emphasized the necessity of the law revision for the sake of prohibit from wearing mask on the basis of the constitutionality of the current Law on Assembly and Demonstration, and focused as a whole on enhancing our culture of the Law on Assembly and Demonstration to the level of the developed countries. Conclusively, this article emphasizes that we can not achieve the legalism for the democracy and have no way to advance our society to the developed countries, without respecting the decision and law enforcement of our police, which is of the democratic legitimate government and not of authoritarian government in the past.