거주·이전의 자유의 보호영역에 대한 소고

The Constitutional Court ruled in Seoul Plaza case that freedom of residence and freedom of changing location, prescribed in Article 14 of the Constitution is a fundamental right to ensure an individual’s free exercise of choosing and changing location of places closely related to his or her daily life that amounts to a place of residence or a place to stay, and that the protection does not cover an act of choosing and changing transitory places that do not amount to the base of living. The Court also stated in Seoul Plaza case that the right to pursue happiness under Article 10 of the Constitution includes (as an articulated form of the right) the right to general freedom of action, holding that a public property designated for public use is used for its intended purpose, people should be able to engage in such general and ordinary use without seeking permission by administrative authority. This interpretation of the Court, however, is a too narrow interpretation of Article 14, since its interpretation is only acknowledging the freedom of residence, not the freedom of changing location despite the clear language of the Article itself. It also contradicts to the history of guaranteeing freedom of residence and freedom of movement. If the issue is related to which path an individual takes when moving from one place to another place, or related to the method of transportation, it might belong to the area of protection of the general freedom of action. But if the issue is related to prohibition of the movement itself, it must be an issue connected to freedom of movement, not the freedom of general freedom of action which derives from the right to pursue happiness.