국회인근 집회금지의 위헌성 — 헌바20·59(병합)결정 검토를 중심으로 —

Abstract

The freedom of assembly is a fundamental human right especially important to minority in a democratic society. It prohibits separating the place of assembly from the object of protest unless other constitutional benefits justify it. The statute that entirely bans the assembly near Congress is unconstitutional because it violates the principle of proportionality. First, when we consider that in a democratic society the function of Congress is to access to various opinions of people, and the assembly that injures Congressmen or obstructs the entrance and exit through a door is not an assembly that the constitution protects, and a Congressman has to perform his duties according to conscience in consideration of pressure from the street, and the Capitol building is not the object of protest, the objective of statute is not justified. Second, if we presuppose that the objective of statute is just, we can acknowledge the fitness of the means. Third, the statute that altogether forbids the assembly near Congress violates the principle of the least restriction because the objective of statute can be accomplished by means of less restrictive alternative. Fourth, the statute that altogether forbids the assembly near Congress violates the principle of the balance of benefits because the private interest that is restricted is too big compared with the public interest. I think that it will be right that we get rid of the article or amend the article in a way that the state can impose some conditions under circumstances after permitting assembly as a general rule.