集會·示威로 인한 他人의 法益 保護에 關한 硏究 = (A)study on the protection of other party's legal interests infringed on through assemblies or demonatraions

다국어 초록 (Multilingual Abstract)

Purpose
The freedom of assembly, as a way of expressing a collective opinion, is one of the constitutional rights and a critical element in establishing and developing democracy.
The freedom, however, may have a conflict with public peace and security as well as the rights and freedom of others as its exercise, in its nature as a right of the masses, may involve many participants and their verbal and physical expression even if it is one of the fundamental rights to promote the expression of minority' s opinion and the formation of public opinion in a democratic society.
Accordingly, the freedom of assembly should not be a definite one which is guaranteed under any circumstances rather it should be exercised in a restrained manner under the consideration of the actual circumstances and the legal interests of others.
Recently, however, there has been a trend in our society that the participants of some assemblies or demonstrations put a priority on how effectively their opinion draws a public attention and achieve the goals irregardless of the legality and appropriateness of a procedure and a means. Moreover, some assemblies or demonstrations, in terms of the purpose, are organized mostly in order to display the influence of a hosting organization instead of mostly to express the opinion, which may result in violence and deviation from the original purpose and may breach the peace and order of public conflicting with others' freedoms and rights and compromising others' legal interests.
The typical examples are as follows; environmental rights and/or privacy rights and/or rights to learn compromised by the noise of an assembly or a demonstration, the right of way breached by mass rally on traffic lanes in downtown, the freedom of business and/or privacy rights threatened by protracted assemblies on the premise of a person's residence or business. It is a reality that the fundamental rights of the majority are compromised in the course of guaranteeing the minority's right of assembly.
In order solve the problem thereof the approach should not be to the illegality of an assembly but to the conflict of fundamental rights and the duty of protection imposed on a nation regarding the breach of citizen's freedoms and rights caused by an assembly and a demonstration.
Accordingly, this study, based on the views stated above and the theories of fundamental rights, aims at providing a solution to harmonize the guarantee of the right of assembly and the protection of the other party's legal interests.
Methodology
To achieve the purpose of this thesis, this study relies on both literature study and experimental analysis.
As for literature study, publications, theses, conference materials and media reports on the issue of the guarantee and limitation of the right to assembly, the measures to establish the culture of peaceful assemblies, the issues regarding current Act on Assembly and Demonstration, by various authors such as researchers, NGOs, research organizations and police practitioners, were analyzed.
In addition, as for experimental analysis, a survey was done on public attitude toward the excercise of the right to assembly and the current condition and cause of damage therefrom.
The survey was distributed to 430 residents in Seoul and 250 citizens who reside in area where assemblies have been frequently hold and may find themselves damaged therefrom, through simple random sampling.
The survey was executed using questionnaires designed respectively for residents citywide in general, residents in the area where assemblies have been hold frequently, and the merchants thereof. As for residents citywide, the respondents were selected to have them distributed equally in terms of the region of residence. The outcome of the survey was analyzed through frequency analysis, regression and correlation analysis by an expert pollster organization.
Findings
The outcome of analysis is as follows;
First, as for the attitude toward the right to assemble, this study, without demographic variation, found 81.5% of the respondents agree that assemblies and demonstrations are essential while the ratio is higher among comparatively low-income respondents. Moreover, some respondents found to possess a view that the right to assemble may be employed to achieve their request and/or settle their complaint instead of to express their opinion.
Second, most responded that they found the number of assemblies and demonstrations at present too many and the manner of them too violent and/or illegal. Quite a few respondent answering illegal demonstration may be in need, generous public attitude toward illegality was displayed.
Third, as for the damage caused from assemblies and demonstrations, 60.7% responded they have sustained a damage and the residents of the region where assemblies and demonstrations are frequently hold were reported to have more experience of damage than other respondents in general. As for the reason of deviation in exercising the right to assemble and victimizing citizen in general, lack of law abiding spirit of participants, excessive police action, and promotion of violence by the sponsors were picked in sequence. The older the respondents, the higher the responding rate to blame lack of law abiding spirit of participants.
Fourth, as for the recovery of damages caused from assemblies and demonstrations, the most serious damage was found to be damages from traffic congestion. As the procedures are not publicly known, most respondents did not actively engage in a procedure to recover the damage even if they recognized they should.
Fifth, as for the police action regarding assemblies and demonstrations, 56.7% respondents found the police are strict in dealing with them and majority of the respondents possessed negative attitude toward how police control an assembly. However, the respondents with an experience of victimization from an assembly and/or demonstration, evaluated police action rather passive and hoped the proactive police action.
Sixth, as for the improvement of the culture of an assembly and a demonstration, most respondents agreed that illegal demonstration should be restrained and it is most important in minimizing the damage on citizens in general to further appropriated understanding of the right of assembly.
Conclusion
This study, based on the literature study and experimental analysis stated above, came to a conclusion that the improvement in law and other systems should be carried out simultaneously with the change of current deviated attitude and subculture regarding the right to assembly.
First, the distorted public understanding of the exercise of the right to assembly should be remedied by fostering the acknowledgement of side effects of an illegal assembly or demonstration and the awakening that the public are insensible to the irregularity of the exercise of the right.
Second, collective litigation procedure for redress for the damage sustained from an assembly or a demonstration, community initiative in deciding the permit of assembly and other measures should be implemented to promote community members to prevent and recover from the damages caused by illegal assemblies
Third, social consensus should be established on that illegality should be followed by the responsibility in consequence by declaring clear principles and standards and enforcing law strictly.
Lastly, current Act on Assembly and Demonstration should be amended and countermeasures such as ban on mass rally on traffic lanes, excessive noise, assemblies on private premises, and breach of others' right to assembly through protracted assemblies should be provided.

목차 (Table of Contents)

• 目次 = i
• 제1장 서론 = 1
• 제1절 연구의 목적 = 1
• 제2절 연구의 범위 및 방법 = 5
• 1. 연구의 범위 = 5
• 2. 연구의 방법 = 7
• 제2장 연구의 이론적 배경 = 10
• 제1절 집회의 자유의 개관 = 10
• 1. 집회·시위의 개념 = 10
• 2. 집회의 자유의 성격 = 16
• 3. 집회의 자유의 한계 = 18
• 제2절 집회·시위로 인한 타인의 법익 보호 관련 이론 = 24
• 1. 기본권의 대사인적(對私人的) 효력에 관한 이론 = 25
• 2. 기본권 충돌의 해결 이론 = 33
• 제3절 집회·시위로 인한 타인의 법익 침해 형태 = 41
• 1. 우리 나라 집회·시위 현황 = 41
• 2. 최근 집회·시위 문화 특징 = 47
• 3. 집회·시위로 인한 타인의 법익 침해 = 50
• 제4절 외국의 집회·시위 보장과 규제 제도 = 61
• 1. 영국 = 61
• 2. 미국 = 65
• 3. 독일 = 73
• 4. 일본 = 78
• 제5절 선행연구의 검토 = 84
• 제3장 조사결과 분석 및 논의 = 88
• 제1절 조사 설계 = 88
• 1. 연구 분석의 모형 = 88
• 2. 가설의 설정 = 91
• 3. 조사 및 분석 방법 = 92
• 제2절 조사결과의 분석 = 96
• 1. 집회의 권리와 체감적 피해 인식과의 관계 분석 = 96
• 2. 법익 침해에 대한 대응 실태 분석 = 111
• 3. 타인 법익침해 요인 및 경찰 대응 관련 분석 = 117
• 4. 집회·시위에 대한 법·제도적 인식 분석 = 123
• 제3절 가설의 검증 결과 = 132
• 제4절 분석결과의 논의 = 134
• 제4장 집회·시위로 인한 타인의 법익 보호 대책 = 141
• 제1절 집회·시위의 권리에 대한 인식 전환 = 143
• 1. 집회·시위권 행사에 대한 의식 개선 = 143
• 2. 일탈적 집회·시위로 인한 폐해 인식 제고 = 144
• 3. 법익 침해에 대한 체감 홍보 강화 = 147
• 제2절 권익보호 위한 시민대응 활성화 = 148
• 1. 피해보상 위한 자체 대응 = 148
• 2. 지역단위 커뮤니티의 활성화 = 149
• 제3절 법집행의 일관성 유지 = 150
• 1. 정확한 원칙과 명확한 기준의 설정 = 150
• 2. 불법행위에 책임지는 사회적 공감대의 형성 = 152
• 제4절 법적·제도적 보완 = 154
• 1. 관련 법규에 대한 입법적 보완 = 154
• 2. 갈등해결 전문가 양성 등 제도적 방안 = 164
• 제5장 결론 = 167
• 참고문헌 = 171
• ABSTRACT = 180
• 부록 = 186
• 설문조사서 (A) = 186
• 설문조사서 (B) = 196