도로점거시위에 대한 형사법적 관점의 고찰

Passive, defensive and non-violent assembly obstructing roads be viewed from a standpoint securing assembly right instead of regulating assembly, considering the binding authority of fundamental right of demonstration guaranteed in constitution. Law enforcement agencies should not apply the obstructing traffic crime without considering the condition of obstructing roads during assembly. Because criminal punishment should be the last resort to regulate demonstration and assembly after requesting to stop assembly, dispersal order and direct dispersal by police officers. In other words, it is desirable to apply the demonstration and assembly law and traffic law which have provisions to secure traffic order. Therefore, obstructing traffic crime should be applied strictly in case of departing of the scope of right of demonstration in Constitution, such as destroying roads, establishing obstacles which can not be removed easily and restricting traffic by considerable. “obstructing” and “other methods” which are elements of obstructing traffic crime in Korean Criminal Law should be revised to guarantee the principle of clearness so that to get rid of controversy over violating the clearness principle in Nulla poena sine lege. Also, criminal law concerning assembly obstructing traffic should be functioned properly and on time as a method to solve social confliction and a last resort to solve problems. So, it is required that criminal law standpoints against peaceful,not-violent assembly obstructing roads be converted. First, theory of joint-principal through conspiracy should be excluded from a standpoint to secure the right of demonstration. Second, minor crimes of assembly obstructing traffic should be decriminalized. Third, it is necessary to permit compulsory identification power by police in stop and search to guarantee the effectiveness of decriminalization involving minor crimes violating demonstration and assembly right.