집회 및 시위의 자유 -그 헌법상의 의미- = Right to Protest and Limits of State`s Police Power

다국어 초록 (Multilingual Abstract)

The Constitution guarantees not only right to free press but also free assembly and association(§21 ), Human history as well as many constitutional and political theorists have shown that such rights has played essential roles in developing democracy, But korean experience has been somewhat different, Korean government, esp. that of the military regime, has so severely oppressed people`s right to participate in political process and, as result, has punished lots of political rivals and protestants under charge of riots and/or treason. The Assembly and Demonstration Act (hereinafter the Act) has many poisonous claused that has offered legal grounds for such authoritarian rule. This paper tries to explore constitutionality of that Act in the light of human right and democratization according to the doctrine of time, space, and manner regulation established by the U.S. Supreme Court. The Act, as amended on Jan. 2004, forces any assembly and/or demonstration in public forum to be filed in advance, failure of which shall be punished as a crime. The chief of Police Station has power to prohibit any assembly and/or demonstration when he/she thinks there may be some disturbance to public order. Such provisions can not be constitutional because the Constitution makes any license system in this respect illegal. The other clauses such as prohibition of assembly and/or demonstration in main streets and around schools, limitation of noise level, and power to compulsory breaking up when some physical violences happen, shall not be free from attacks of unconstitutionality. From such analysis of unconstitutionality of the Act, this paper requires the Act shall be abolished as soon as possible and a new act which can provide more open pubilc fora in Korean civil society.