집시법의 탈형사화 = Decriminalization of Assembly and Demonstration Act of Korea

다국어 초록 (Multilingual Abstract)

Under `the Assembly and Demonstration Act of Korea`(ADAK), to demonstrate, parade, or make a speech in public, individuals and organizations must obtain a permit from government officials well in advance. In fact, even where permits are not required assemblies may be dispersed for actual and anticipated obstructions of traffic, including pedestrian traffic. Most deplorable thing in Korea is the fact that ADAK can be characterized as over criminalization. This essay quests about whether there could be means to secure the right to assembly and demonstrate at the same time to secure public order and national security. Given the persistence and seeming intractability of police misconduct, Korean people are entitled to be skeptical of all models to control it. The simple truth is that no one approach is sufficient, and all have advantages and disadvantages. However, the 2003 investigation of the Metropolitan Police Department by the Judiciary Committee of the City Council of the District of Columbia, and the report and legislation that resulted from it, illustrated that it can be possible. From this perspective, I introduced the investigation in Part Ⅱ. The investigation focused on how the police handled (or mishandled) anti-globalization demonstrations held in Washington, D.C. from 2000-2003, and how that inquiry led, ultimately, to the drafting of model legislation, “The First Amendment Rights and Police Standards Act of 2004” which became law in 2005. It exposed bad practices and shortcomings and restored a proper balance between law enforcement and liberty. Overall, the effort was a remarkable affirmation that good police practices and freedom of expression are not antithetical. In part Ⅲ, I critically examine various parliamentary reform bills and discuss the possibility whether Koreans can benchmark “The First Amendment Rights and Police Standards Act of 2004”. Various parliamentary reform bills were strengthening criminalization or Decriminalization. In part Ⅳ, I conclude that benchmarking of “The First Amendment Rights and Police Standards Act of 2004” could be possible from the perspective of recent highly developed democratic and constitutional consciousness of Korean people. The nineteenth-century right of western hemisphere was one of assembly without needing to ask permission and of going forth without restriction unless and until one breached the one condition of access, namely that one be peaceable. Today, by contrast, western citizens have a right to assemble on the streets, so long as they obtain permission from officials (if that is required), abide by the terms of the permit issued, and are peaceable. Moreover, the definition of peaceable has been narrowed: An assembly may be dispersed for actually or potentially obstructing traffic (including pedestrian traffic), even where no permit is required. Essentially, this Article argues that the right of assembly should not be collapsed into the right of free expression. It should not be forgotten that when Madison first proposed the bill of rights amendments in 1789 in America, he separated the collective rights of assembly and petition from those of speech and press. The right of assembly protects collective action-political and social. It protects the people and their aspirations for collective public deliberation on issues of public importance. It protects “the right of the people” to have “a public demonstration or parade to influence public opinion and impress their strength upon the public mind, and to march upon the public streets of the cities.”