일반 교통방해죄와 외교기관 인근 집회·시위 금지에 대한 헌법적 평가 ― 헌법재판소 2010. 03. 25. 선고, 2009헌가2 결정과 헌법재판소 2010. 10. 28. 선고, 2010헌마111 결정에 대한 비판을 중심으로 ―

On March 25th 2010, the constitutional court made a decision that the ‘other methods’ in article 185 of the penal code is constitutional, because such other methods do not infringe the void for vagueness doctrineand the freedom of assembly. However, it is not clear whether the opinion of constitutional court means that the ‘other methods’ in that the ‘other methods’ in article 185 of the penal code does not require the interference of traffic flow, or generation of specific public risk caused by such other methods. This the ‘other methods’ in article 185 of the penal code is also not clear whether it means the interference of traffic flow with clear illegality such as the ‘vandalism or impassability’ in the regulation. Therefore, the ‘other methods’ in article 185 of the penal code is believed that this article is against the void for vagueness doctrine. And It is possible that the law enforcement agency can arbitrarily apply that the ‘other methods’ in article 185 of the penal code on broader range and penalize the persons who organize the assembly or demonstration on the road. Therefore, it is believed that the article is unconstitutional infringing the freedom of assembly. Thus, it is suggested that the ‘other methods’ in article 185 of the penal code be revised in the future to be more clear and specific like in Germany and Japan. Meanwhile, on October 28th 2010, the constitutional court made a decision that the number 4 of article 11 in law on assembly and demonstration is constitutional, because the number 4 of article 11 in law on assembly and demonstration is not against the void for vagueness doctrine. However, the number 4 of article 11 in law on assembly and demonstration bans the assembly or demonstration around the diplomatic machinery in principle and allows some of them only as exceptions. Therefore, this article in law on assembly and demonstration is against the warranty system of basic rights in the constitution. And the safety of diplomatic machineries and diplomats can be protected by other articles in the law on assembly and demonstration and penal code. Therefore, it is believed that this article in law on assembly and demonstration is unconstitutional regulation against the principle of balancing test. Thus, it is suggested that subject article be revised in the future to allow the assembly or demonstration around the diplomatic machinery in principle and limit some of those dependent on the specific case as exceptions like in the United States, Germany and Britain.