24시 이후 야간시위 금지에 대한 평가

Recently the Constitutional Court delivered a decision declaring Art. 10 of the Assembly & Demonstration Act(‘ADA’ hereinafter) conditionally unconstitutional so long as it is construed as prohibiting a demonstration from sunset before 12 o’clock a.m. Furthermore, the Supreme Court considered the decision of conditional unconstitutionality as that of partial unconstitutionality, which caused the inferior courts adjudicating the ‘candle demonstration’ cases in 2008 to convict mechanically those having paricipated in the demonstration after 12 o’clock a.m. of violation of ADA §10. All these situations bring about serious chilling effect on freedom of assembly. Based on this understanding, I demonstrated that the Constitutional Court and the Supreme Court violated the constitutional principle of separation of powers by adjudicating matters that should be decided by the legislature. Also, I criticized judges of the inferior courts who convicted those accused of the violation of ADA §10, because they failed to verify that the demonstrations after 12 o’clock a.m. caused a clear and present danger to the society, and thus betrayed their duty to rule independently according to their conscience and in conformity with the Constitution and laws. Furthermore, I proved the unconstitutionality of ADA §10 and suggested a direction: ADA §10 must be abolished immediately since the Constitution protects the freedom of peaceful assemblies or demonstrations at any time unless they present a clear and present danger to the public order or social peace.