도로에서의 집회․시위 제한에 대한 헌법적 고찰

Freedom of assembly and demonstration provides a constitutional representation of collective expression. Under representative democracy, freedom of assembly and demonstration functions as a means of realization of personality and reflection of the nation's meaning to the national authority. And today's it is important because it reflects the needs of minorities. In order to effectively achieve the purpose of assembly and demonstration itself, the organizers of assembly and demonstration must be able to freely choose the venue and time of the assembly and demonstration. The venue where assembly and demonstration take place has special implications for the purpose of the assembly and demonstration. So the choice of venue has a special symbolic meaning. The current assembly and demonstration act provides the obligation to declare outdoor assemblies and demonstrations. The Constitution prohibits the prior permission for assemblies and demonstrations. To prevent the prior notification from operating like the prior permission, the prior notification should function as preparatory or proactive to ensure the establishment of free assemblies and the activities of peaceful assemblies. In practice, however, the actual prior notification system is often operated as the prior permission system. Not acknowledging the exception of the prior notification for all outdoor assemblies and demonstrations, it requires a revision of the assembly and demonstration act. The outdoor assemblies and demonstrations can easily conflict with other people's basic rights, and in that case, it is necessary to adjust them. The most frequent issue in the outdoor assemblies and demonstrations is the harmony of the public transportation. However, it should be ruled out that unconditional priority on public transportation is strictly preferred. If the public transportation can only be achieved by the restriction of the outdoor assemblies and demonstrations, the prohibition of the outdoor assemblies and demonstrations is against the principle of proportionality. Also, it should be prohibited to ban the outdoor assemblies and demonstrations for the reason of the omission of notification details. In addition, the issues that can be discussed on the assemblies and demonstrations on the roads are to punish ordinary participants for general obstruction of traffic crime. Violent assemblies and demonstrations are not guaranteed by freedom of assembly and demonstration. Thus, if the outdoor assemblies and demonstrations become violent, it may be reasonable to punish those involved in the criminal justice system. However we have a problem with the fact that the Supreme Court is determined to constitute a general obstruction of traffic crime for violations of assembly and demonstration act without judging the elements of a crime. It has an infringement of freedom of assembly and demonstration in the wake of the fact that participation in The outdoor assemblies and demonstrations is not a basic exercise, but a crime.