주요국의 입법례를 통한 우리나라 미신고 집회 및 허위 신고 집회의 규제 개선 연구

Freedom of assembly shall, in principle, be guaranteed as much as possible pursuant to Article 21 (1) of the Constitution. But, in order to protect the public well-being and order, Article 37 (2) of the Constitution may be restricted to the minimum extent necessary so as not to violate the principle of balancing test in the law on assembly and demonstration and so on. In light of this, six desirable legislative improvement measures are presented for various assembly reporting systems, such as the regulation of unreported assembly and false assembly reporting in Korea’s assembly and demonstration laws, by reviewing related legislation in the UK, the United States, Germany, France, and Japan. First, In the future, it is desirable to improve the time for pre-reporting of assembly in the same law, from 360 hours to 24 hours, not from 720 hours to 48 hours ago as it is now. Second, In the future, if there is a change in the size, time, or travel route of the originally reported assembly when the pre-declared assembly is not held in the same law, it is desirable to improve it so that the withdrawal report of the assembly can be submitted 12 hours before, not 24 hours before. Third, In the future, it is desirable to make improvements in imposing new fines without imposing criminal penalties on organizers or participants of unreported or false reports of assembly in the same law. This is because od the Second clause of Article 21 in the Constitution explicitly prohibits the permit system, and in the same law, the pre-reporting system of assembly is only an administrative procedural obligation to provide police with various information related to assembly in advance to harmoniously protect the legal interests and public well-being of others along with freedom of assembly. Fourth, In the future, it is desirable to improve the introduction of a new disclaimer to prevent criminal punishment if the organizer of the assembly proves that an organizer of assembly has not reported or reported a false assembly without intention or negligence in the same law. Fifth, In the future, it is desirable to make improvements in imposing new fines on each participant, knowing that the organizer of the assembly deliberately violated the legal interests or public well-being and order of others by reporting unreported assembly or false assembly in the same law. Sixth, In the future, it is desirable to further protect the freedom of the organizers and participants of the assembly by simplifying or reducing various entries in the current assembly pre-report to prevent unexpectedly turning into false assembly reports in the same law and the enforcement decree. On the other hand, all major countries, like Korea, have a written pre-reporting system that is essential in the assembly-related laws and regulations to protect the legal interests of others, public well-being and order, allowing them to prepare or prepare in advance to protect the peaceful holding of assembly as much as possible by competent authorities such as the police. Therefore, it is reasonable to continue to maintain the pre-reporting system of assembly in Korea’s law on Assembly and Demonstration in the future without abolishing the pre-reporting system of assembly.