집회의 자유에 의하여 보장되는 활동의 범주에 관한 연구- 헌법합치적 법률해석의 관점에서

Freedom of assembly may conflict with others' legal interest or public interest, but it is clear that it constitutes “costs assumed by free democracy” in the free democratic country. Thus, the issue is limited to the degree of restraint. Through cases where “the Assembly and Demonstration Act”(“the AD Act”) has been applied, this article will examine “categories of activities guaranteed by freedom of assembly”, and summarize solution through interpretation·application of the AD Act by the court's Constitution­conforming interpretation and the part requiring legal amendment, and find out whether the court has been attempting for the solution. For this purpose, constitutional review comes first regarding the relation between freedom of assembly and freedom of expression with the focus on the Supreme Court decisions which newly presented legal principle with regards to the punishment provision about unreported outdoor assembly pursuant to the AD Act. Next a priori regulation measure regarding assembly is concerned with whether “assembly and demonstration” which is subject to the AD Act exists. Accidental assembly and emergency assembly lacking legal provisions need theoretical proof despite their importance. In case of press interview, candle light demonstration, flash mob, (modified) one-person demonstration, essence has been revealed through fact-finding in practice. And constitutionality of demonstration restraint near to the National Assembly among the absolute bans against assembly is still under dispute. Legal principle as to outdoor nighttime demonstration deserves consideration in light of the Constitutional Court Order as to its time restraint. The related issues are: the Supreme Court's interpretation and application as to general obstruction of traffic in terms of the Criminal Act; multiple reports; interpretation related to the above advanced blockade. Posterior measures are: interpretation of the “act deviating from purpose” which the holder should comply; the issue whether an unreported assembly or an assembly deviating from the reported scope is subject to a dissolution order in terms of the Supreme Court's recent criterion. Discussion for amendment reflecting the case laws is on demand where case laws have been accumulated to establish criteria with an unclear legal provision; constitutionality can be maintained by interpretation of restraint in the direction protecting basic rights with a clear legal provision; premised on unconstitutionality with a clear legal provision. The second one commands decision-making case by case, and thus regulation by the law is more proper in terms of legal stability.