집회 및 시위에 관한 법률상 확성기 등 일시보관 조치의 법적 성격에 대한 고찰

In accordance with the enactment of the General Act On Public Administration and the enforcement of Administrative Compulsion provisions, it is necessary to reorganize the provisions on the basis of Administrative Compulsion scattered in individual lawsto clarify the application relationship with general laws. Accordingly, it is necessary to explain whether the legal character of the temporary storage action of loudspeakers under the Act on Assembly and Demonstration is direct compulsion or immediate compulsion. Some argue that direct compulsion and immediate compulsion should be distinguishedbased on 'non-fulfillment of administrative obligations'. On this premise, they insist that the legal character of temporary storage action of loudspeaker is directcompulsion. However, It is reasonable to find a sign of distinction in the form of direct compulsion and immediate compulsion in “the existence or absence of the preceding administrative act that imposes obligations”. Because if non-fulfillment of obligations with general prohibitions is the criterion for distinguishing administrative Compulsion, the range is overstretched for a standard and it becomes to be hard for administrative objects to predict the administrative act. Therefore, it is considerable to explain that the legal character of the temporary storage action of loudspeaker is immediate compulsion. Because first of all, it can beenforced without preceding administrative act that imposes obligations under the currentlegal system. Secondly, there will be no real benefit to administrative action with the end of assembly and demonstration. Finally, excessive noise from the assembly and demonstration may cause serious damage to human health or to the property.