집회․시위의 자유의 헌법규범과 헌법현실

Constitutional Norms and Realities on the Freedom of Assembly and Demonstration Prof. Dr. Oh, Dong Suk Law School of Ajou University The protection zones of fundamental rights in the constitution have been formed historically, are being formed, and will be formed continually in the future. I think one of the roles of constitutional study should be the work of systemizing dynamic reality. I suggested the protection zones of the freedom of assembly contain the freedom to hold an assembly, the freedom to choose an assembly place, the freedom to proceed an assembly, the freedom to join an assembly, the freedom of demonstration, and a basic principle for democracy etc.. The Korean Constitution has the clauses of the prohibition of advance permission and the prohibition of basic contents infringements relating to the freedom of assembly. According to the constitutional doctrine of double standard between the spiritual fundamental rights and the economic ones and the stage theory relating to the rights of occupation, I think the constitutional hierarchy among the fundamental rights consists of ‘the freedom to hold an assembly - the freedom to proceed an assembly - the freedom to choose one's occupation - the freedom to follow one's occupation’. The scheme of the fundamental rights shows that the freedom to hold an assembly is the highest rank right in democracy society. And “The more stable the political system, the greater is the toleration of political protest”(Bailey, S. H./ Harris, D. J./ Jones, B. L.(1985), 119). But the constitutional norm and the constitutional reality in Korea lie in the adverse relations. I think the most important task for democracy in Korea should be to gain freedom of assembly and demonstration.