평화시위구역제도와 국회․법원 인근 집회 금지에 대한 헌법적 평가 ― 헌재결 2009. 12. 29, 2006헌바20․2006헌바59(병합)와 헌재결 2009. 12. 29, 2006헌바13에 대한 비판을 중심으로 ―

In 2009, for about 6 months, the peaceful demonstration zone policy was experimentally operated by the National Police Agency. And in December 2009, the constitutional court in article 11, number 1 of law on assembly and demonstration in before the revision in May 11, 2007, ruled that it is in constitutionality to prohibit assemblies or demonstrations within 100 meters of the national assembly building and each court. However, these peaceful demonstration zone policy and article 11, number 1 of law on assembly and demonstration in before the revision in May 11, 2007 which prohibit assemblies and demonstrations within 100 meter radius of the national assembly building and different level of courts are unconstitutional for the following reasons. First of all, the peaceful demonstration zone policy assumes that the government emphasizes only its duties to protect the public stability and order that it unilaterally designates locations for demonstrations. It can be seen as an unconstitutional system as it doesn't approve the choosing rights of demonstrators that they autonomously choose a location where they do not harm public stability and order while maximizing their purpose of demonstrating. Also, as a nation traditionally needs to generally accept assemblies and demonstrations on the streets, square plazas, or parks, according to theory of traditional public forum developed by the United States Supreme Court that sees regulations on assemblies and demonstrations on these locations need to be confined, peaceful demonstration zone policy, as it excessively limits the location selecting rights of the demonstrator thus not a confined regulation, is an unconstitutional system. Therefore we do not approve the thoughts of readopting this system that may come up in the future. Also, in the article 11, number 1 of law on assembly and demonstration before the revision in May 11, 2007 the National Assembly Building section disregards its original constitutional mission as a organization that represents the will of the people by allowing the national assembly or members of it to reflect the opinion of the demonstrators because of abstract dangers that assemblies or demonstrations may bring, thus making it invalid for its legislation purposes. Even if the purpose of the legislation is in fact justifiable, as the national assembly building is far away from the boundaries so that the method prohibiting all assemblies and demonstrations in 100 meters radius from the same building that is selected to fulfill its legislation purposes isn't adequate and prohibiting all assemblies and demonstrations even those that 1. do not target the national assembly, 2. are small assemblies or demonstrations, 3. or are assemblies or demonstrations on holidays or recess sessions, is excessively limiting personal freedom to protest and goes against the principle of the minimal infringement. And as for assemblies or demonstrations that are held within the boundaries of the national assembly building can be dealt with the national assembly's administration rights, and as for those that are held outside of the boundaries can be restricted under the article 5, number 1, article 6 number 12, article 18 of law on assembly and demonstration before the revision in May 11, 2007 and other various criminal procedure code regulations, prohibiting all assemblies and demonstrations within 100 meter radius from the boundaries of the national assembly building that article 11, number 1 of law on assembly and demonstration before the revision in May 11, 2007 depicts, is going against the principle of the minimal infringement. Thus, the benefit named freedom for assemblies and demonstrations that is violated by the same regulation is larger than the public benefit which is protecting various public functions of the national assembly and safeguarding members of the national assembly. Consequently, it is adequate to say that it is going against the principle in the balance of the benefit and protection of the law. Therefore, we need to either remove the regulation or preserve it but with creating an exclusive regulation such as article 11, number 4 of law on assembly and demonstration before the revision in May 11, 2007. Also, in the article 11, number 1 of law on assembly and demonstration before the revision in May 11, 2007 the ‘Each court’ section, as it is to protect the fairness and independence of the court, which is our constitutional request, and to protect individuals such as judges, the legislation purposes are justifiable and as prohibiting all assemblies and demonstrations within 100 meter radius contributes in fulfilling such legislation purposes, the adequateness of the method is agreeable. However, prohibiting all assemblies and demonstrations even those that 1. do not target each court, 2. are small assemblies or demonstrations, 3. or are assemblies or demonstrations on holidays, is excessively limiting personal freedom to protest and goes against the principle of the minimal infringement. Thus, the benefit named freedom for assemblies and demonstrations that is violated by the same regulation is larger than the public benefit which is protecting the court's fairness and independence and protecting individuals such as the judge. Consequently, it is adequate to say that it is going against the principle in the balance of the benefit and protection of the law. Therefore, we need to preserve it but with creating an exclusive regulation such as article 11, number 4 of law on assembly and demonstration before the revision in May 11, 2007.