집시법 제11조의 집회장소제한 규정에 관한 헌법재판소 결정 평석 - 2018헌바48, 2019헌가1(병합) 결정 및 2021헌가1 결정 -

Recently, the Constitutional Court declared the provisions of the Assembly and Demonstration Act to be incompatible with the constitution regarding the absolute prohibition of assemblies near the ‘President’s official residence’ and the ‘Chairman of National Assembly’s official residence’ respectively. The key reason for the decision incompatible with the Constitution was that even assemblies are prohibited without exception even when there is no specific danger to the function or well-being of each target institution. In other words, even if outdoor assembly or demonstration in the vicinity of target institutions are prohibited in principle, the above Court took the position of ‘prohibition in principle, exceptional permission’, that it must be exceptionally permitted when there is a low possibility that specific risks will actually exist. This position is in line with what the above Court has ruled since the 2000s, declaring the absolute prohibition of assembly under Article 11 of the above Act to be unconstitutional or incompatible with the constitution several times. However, along with considerable criticism in the academia regarding the reasons for the decision of the above Court, it has been pointed out that a prospective review of the restrictions on assembly places should be made. Accordingly, I critically review two recent decisions made by the above Court and present legislative alternatives, from the viewpoint that the restrictions on assembly places under Article 11 of the above Act should be harmonized with the promotion, protection, and guarantee of the 'right to freedom of peaceful assembly'.