집회를 위한 광장 사용과 그 제한의 한계

The freedom of assembly includes the freedom to choose the location of the assembly. Holding an assembly necessitates the use of a certain place. When people gather to express their collective opinion, open spaces like squares are often prioritized as venues. Historically, major squares located in city centers have frequently served such functions. Even newly created squares by local governments in modern times generally exist for the purpose of ‘citizen gatherings and communication.’ Public squares, which are considered public property, can generally be used in accordance with relevant laws such as the ‘Public Property and Commodity Management Act’. This principle remains applicable even when holding assemblies. Even if an assembly notification is submitted to the police under the ‘Assembly and Demonstration Act’, it does not automatically grant the right to use the location. Even if local ordinances provide more lenient standards for use than national laws, they merely serve as guidelines for the discretionary authority of the administrative body. In other words, ordinances do not fundamentally alter the usage relationship of public property as defined by national law. However, if the criteria for permitting the use of squares as assembly locations are too strict, the ‘public forum’ can be stifled. Therefore, the discretionary authority of the administrative body regarding the use of squares must be strictly controlled from the perspective of protecting constitutional rights. The freedom of assembly protected by the Constitution requires that such discretionary authority fully consider the role and function of squares as ‘public forums’. Additionally, the Constitution mandates careful consideration of whether partial restrictions, rather than outright prohibitions, can harmonize with the use by others. Given the diverse conditions of squares and the various forms of assembly, it is challenging to present a uniform standard for the use of squares for assembly. This issue can only be examined on a case-by-case basis, taking into account the specific circumstances of the squares and assembly in question. The exercise of discretionary authority by the administrative body responsible for granting permits for the use of public squares, as well as the enactment of ordinances regulating such use, must be done with consideration of the Constitution's guarantee of freedom of assembly, which includes the right to choose the location of the assembly. The Constitutional Court or ordinary courts, in concrete cases, must strictly adjudicate whether the freedom of assembly has been infringed by considering the significance of this freedom in maintaining the functions of a democratic community, as well as the roles and functions of squares, and by establishing its constitutional limits in accordance with the principle of proportionality.