구 집회 및 시위에 관한 법률상 집회의 개념과 사전신고 및 미신고 집회시 형벌 규정에 대한 헌법적 평가 = Constitutional Evaluation on Concept of Assembly, Prior Notice and Penalty Regulations when an Undeclared Assembly Is Held in the Former Law on Assembly and Demonstration -Focused on The Criticism of The Conclusion of the Constitutional Court 2009. 5. 28,

다국어 초록 (Multilingual Abstract)

First of all, the Constitutional Court judged that the regulations on the concept of `assembly` in the former law on assembly and demonstration, article 2, issue 1 was constitutional on May 28, 2009. And, this opinion of the Constitutional Court can be accepted, because it is reasonable. Meanwhile, with regard to objective conditions of assembly, the Constitutional Court interpreted in the broadest sense. However, considering historical origin of freedom of assembly in USA, it is prescribed as the fundamental right in the constitution. And freedom of assembly is prescribed as one out of freedom of expression in the Korean Constitution, article 21. It is valid that the constitutional protection for social assembly with internal ties among many persons is protected from general civil liberties on action in the Constitution, article 10, not from freedom of assembly in the Constitution, article 21. Therefore, the opinion of the Constitutional Court cannot be accepted. Next, the opinion of the Constitutional Court with regard to prior notice system in the former law on assembly and demonstration, article 6, clause 1 that it is constitutional in the point of that freedom of assembly secured in the Constitution can be realized by harmonizing with efficient profits of community can be accepted. However, the prior notice system in the former law on assembly and demonstration, article 6, clause 1 is not valid since it is limited in securing freedom of assembly to the full, considering that persons who open assembly and demonstration may receive supplementary notice by the former law on assembly and demonstration, article 7, clause 1 and prohibition notice by the former law on assembly and demonstration, article 8, clause 1 in an unintended way since statement records in the former law on assembly and demonstration are extremely excessive. In addition, with only abstract danger that emergency assembly or accidental assembly may violate the benefit and protection of law of others or social order in the condition that its possibility to violate the benefit and protection of law of others or social order is not certainly concreted, it limits prior notice time excessively without exception to impose obligation of prior notice followed by the former law on assembly and demonstration, article 6, clause 1, and to give criminal penalty in the law on assembly and demonstration, article 19, clause 2 when it is violated. Therefore, the opinion of the Constitutional Court cannot be accepted since it is against the least detrimental principle out of principle of balancing test. Finally, with regard to that the Constitutional Court judged that it is constitutional to impose penalty on undeclared assembly in the former law on assembly and demonstration, article 19, clause 2, it reduces freedom of assembly in the constitution unfairly and to impose penalty in the former law on assembly and demonstration, article 19, clause 2 with only abstract danger that emergency assembly or accidental assembly may violate the benefit and protection of law of others or social order in the condition that its possibility to violate the benefit and protection of law of others or social order is not certainly concreted. And the prior notice system in the former law on assembly and demonstration is no more than a kind of cooperative obligation in administrative procedure. Therefore, the opinion of the Constitutional Court cannot be accepted since it is against the least detrimental principle out of principle of balancing test to impose penalty, not administrative restriction such as a fine, on its violation.