집시법 제10조에 대한 헌법재판소의 한정위헌 결정의 문제점과 바람직한 집시법 개정 방안 - 헌법재판소 2014. 3. 27. 선고 2010헌가2,2012헌가13(병합) 사건에 대한판례평석을 겸하여 -

The Constitutional Court’s recent ruling on the statutory ban on night timeoutdoor meetings and demonstrations took a suspended unconstitutionalitydecision-making pattern in which its decision would take effect becomingnull and void from a designated future date unless the National Assemblyrevised the statutory provision so as to be consistent with the Constitutionup to the time set. The general statutory ban defined night time as beginningfrom sunset and ending at sun rise and also provided for an exceptionwhen a meeting permission was granted by the police on certain conditions. It is difficult, however, to determine which part of the statutory provisionat issue is indeed inconsistent with the Constitution(unconstitutional)since no opinion commands binding force with 6 supporting Justices. Eachopinion possesses perhaps only a persuasive power. For the people, forthe National Assembly, and for the trial courts, it is desired of theConstitutional Court to give an undivided message for the sake of clarityprinciple, particularly in such a politically sensitive area of law as statutorynighttime ban on rallies and demonstrations involving freedom of expression. Naturally, it is also desirable for Chief Justice to possess ability to play amoral, jurisprudential or intellectual leadership role influencing overassociate Justices in having the Constitutional Court reach a consensus or 6 votes majority. To a certain extent, failure in parliamentarism contributesto judicialization of politics phenomenon in Korea with increased numberof constitutional litigations filed at the Constitutional Court. Now, thesuspended unconstitutionality decision, however, passes the buck on thelegislature. Jurisprudentially definition of night time is not easy to legislate.