[23-1(B) KCCR 457, 2009Hun-Ma406, June 30, 2011]

Questions Presented

1.Whether the action of the Chief of the National Policy Agency on June 3, 2009 that totally blocked passage to Seoul Plaza with police buses (hereinafter "the passage blockade") restricted the complainants' freedom of residence and right to move at will (negative)

2.Whether the passage blockade violated the principle againstexcessive restriction and infringed on the complainants' general freedom of action (positive).

Summary of Decision

1.Freedom of residence and the right to move at will are fundamentalrights to ensure individuals' free exercise of choosing and changing location of places closely related to their daily life that amount to a place of residence or stay. In this case, Seoul Plaza does not constitute a place of residence or stay that plays a central role in the complainants' daily life. Entering and traveling on Seoul Plaza cannot be viewed as an activity of shaping their life around the place. Therefore, we cannot conclude that the passage blockade restricted the complainants' freedom of residence or right to move at will.

2.The passage blockade is a sweeping, broad and extreme measure that bans all potential assemblies and even forbids the passage of the general public through Seoul Plaza. Thus, it can only be justifiably relied on as a last resort when there is imminent, clear and grave danger that cannot be prevented by granting conditional permission or by ordering termination or dispersal of assembly on an individual basis. The facts in this case show that many people gathered around

Seoul Plaza to commemorate the death of former President Roh, Moo- Hyun and that some citizens had committed unlawful violent activities near Seoul Plaza. However, these circumstances did not amount to an imminent and clear danger of the breakout of an illegal, violent rally or protest that could justify the police's continued passage blockade that lasted until four days after the violence had occurred.Thus, the passage blockade was hardly the minimum measure necessitatedby the circumstances. Even assuming that a preventive measure was necessary to completely and entirely stop assemblies, an outright ban on entry to Seoul Plaza inhibited even ordinary citizens from passing by or using it for recreational or cultural activities. Therefore, a less restrictive measure or method that would substantially achieve the purpose should have been considered. For example, the police could have made a few entrances that allow controlled entry to Seoul Plaza or lifted the restriction during certain hours of the day when the occurrence of a large-scale, illegal, violent rally is unlikely or in the mornings when there is much traffic of people on the street near Seoul Plaza. Without such considerations and by completely blocking passage of every citizen, the passage blockade failed to satisfy the principle of least restriction.

Moreover, while the public interest in protecting citizens' life, body and property against large-scale illegal, violent rallies and protests is important, the existence of such public interest and its actual effectappears somewhat hypothetical and abstract given the circumstancesin this case. It also appears that a less restrictive alternative could substantially have achieved such public interest. In this regard, wecannot conclude that the public interest was greater than the substantiveand actual disadvantage to ordinary citizens. The passage blockade thusfailed to achieve balance of legal interests.

Therefore, the passage blockade violated the principle against excessiverestriction and thereby infringed on the complainants' general freedom of action.

Concurring Opinion by Justice Kim Jong-Dae and Justice Song Doo-Whan

The "riot" under Article 5 Section 2 of the Act on the Performance of Duties by Police Officers (hereinafter "Police Officers' Duties Act") should be interpreted to mean "a situation where a large number of people assemble and engage in violent attack, assault or activity of damaging property that disturbs peace and tranquility in the area." In addition, "urgency" under Article 6 Section 1 of the same Act should mean "an exigent situation where the immediacy of harm from a criminal act leaves no other means but to instantly stop the concernedact." No facts in this case indicate that there was a "riot" or "urgency"around Seoul Plaza on June 3, 2009 when the Chief of the National Policy Agency imposed the passage blockade on the complainants. Therefore, these provisions could not be invoked as a legal basis to instigate the passage blockade.

Moreover, Article 3 of the Police Act and Article 2 of the Police Officers' Duties Act, which respectively provide the duties of the police and the scope of the duties of police officers, do not provide a legal basis to instigate the passage blockade, because they cannot be treated as "general enabling provisions," which would provide a basis to restrict or deprive citizens' fundamental rights. The reasons are as follows. First, when the Constitution requires the freedom and rightsof citizens to be restricted by "Act," the Act refers to operative statutoryprovisions applicable to individual and specific cases and does notinclude organizational statutory provisions. Second, treating the provisionsas general enabling provisions would in effect override the legislative intent by judicial interpretation; the legislature, by specifying the requirements and limitations of police action under each individual enabling provision, intended to impose strict conditions for the invocation of police authority. Moreover, applying exceptions only to the police, when other laws related to duties and responsibilities ofgovernmental agency are not interpreted as provisions enabling restrictionof fundamental rights, would substantively dismantle the principle of administration by the rule of law. Finally, even if we were to decide

that the provisions above fall under general enabling provisions, they would still be held unconstitutional as the principle of clarity would be violated and thus cannot provide a constitutional legal basis for the passage blockade.

Therefore, the passage blockade by the Chief of the National PolicyAgency was taken without legal authority. It thus violated the principleof statutory reservation and infringed on the complainants' general freedomof action.

Dissenting Opinion by Justice Lee, Dong-Heub and Justice Park, Han-Chul

Article 3 of the Police Act and Article 2 of the Police Officers' DutiesAct, which stipulate as a duty of the police the duty "to maintain public peace and order," are indeed general enabling provisions that provide the legal basis to instigate police action, because timely and effective exercise of police authority is necessary in reality and also because potential abuse that may arise from treating the provisions as general provisions can be regulated by customary principles or control of the courts. Therefore, the passage blockade based on the above provisions cannot be deemed a violation of the principle of statutory reservation.

At that time, there were many small-sized memorial rallies not only at Deoksugung where the citizens' memorial altar was set up, but also near Seoul Plaza, which is located close to important government agencies. Had a massive number of people gathered at Seoul Plaza, it could have developed into illegal, violent rallies or protests, causing substantial disorder and harm to society. The passage blockade was to prevent such danger and to protect citizens' life, body and property and thus cannot be deemed a clearly unreasonable use of government power. Moreover, the passage blockade was merely a temporarymeasure applied in a limited place, namely Seoul Plaza, to restrictits general use. It neither blocked the detour path nor prevented recreational activities in other places. Additionally, there was no possibility that the scope of such restriction would be expanded in the future. These circumstances indicate that the passage blockade did not

amount to an excessive restriction. Had rallies been permitted on a conditional or individual basis as suggested in the majority opinion, an exclusive use by rally participants would have been led, resulting in restriction on citizens' general freedom of action in a similar vein.Had a few entrances been made to let in individuals or allow recreationaluses, it would have opened the possibility that people intending to hold illegal rally secure the use of Seoul Plaza by deceiving their purpose, thereby failing the purpose of such police action. Further, permitting entrance during certain hours of the day was an unrealistic alternative at that time when there was constant threat of large-scale, illegal, and violent rally. Therefore, it is inapposite to conclude that the principle of least restriction was violated by treating these as less restrictive alternatives. In addition, the passage blockade meets thebalance of legal interests because the inconvenience of being temporarilyprevented from using Seoul Plaza for recreational activities or passing across is not greater than the public interest in protecting citizens' life, body and property against illegal, violent rallies.

Because the passage blockade cannot be considered an infringement on the complainants' general freedom of action, this constitutional complaint should be denied.

--------------------------------------

Parties

ComplainantsMin ○-Hee and eight othersRepresented by Attorney Park Joo-Min (Hankyul Law Firm)

RespondentChief of the National Policy Agency

Holding

The respondent's passage blockade on Seoul Plaza by surrounding itwith police buses, on 3 June, 2009, thereby restricting the complainantsfrom passing through it, infringed the complainants' general freedom of action and thus is unconstitutional.

Reasoning

I. Background of the Case and Subject Matter of Review

A. Background of the Case

1.On May 23, 2009 when former President Roh Moo-Hyun passed away, a memorial altar was set up in front of Daehanmoon of Deoksugung Palace which is located near Seoul Plaza. In response, the respondent blocked entries to Seoul Plaza by putting up a so called 'vehicle-wall' with police buses completely surrounding Seoul Plaza in order to prevent people visiting the memorial altar from holding illegal, violent rallies or protests in the Plaza.

2.The complainants, who are citizens of Seoul Metropolitan City, were prevented from passing across Seoul Plaza on June 3, 2009 because of the vehicle-wall made of police buses around Seoul Plaza. Subsequently, they filed this constitutional complaint on July 21, 2009 seeking a decision of unconstitutionality of such police action, arguing that the passage blockade infringed on their freedom of residence and right to move at will, right to use public assets and right to general freedom of action.

B. Subject Matter of Review

The subject matter of review in this case is whether the respondent's action on June 3, 2009 which prevented the complainants from passingacross Seoul Plaza by surrounding it with police buses (hereinafter"the passage blockade") violated the complainants' fundamental rights.

[Related Provisions]

(Intentionally Omitted)

II. Arguments of Complainants and Respondent

(Intentionally Omitted)

III. Review on Justiciability

A. Infringement on Fundamental Rights

It is established that the Commemoration Committee of Citizens forformer President Roh, Moo-Hyun was denied use of Seoul Plazawhen the Mayor of Seoul Metropolitan City delayed decision on the Committee's application for a permit past the requested date of use. However, the Mayor's de facto disapproval was limited to the use of Seoul Plaza for the purpose of the funeral ceremony and was not extended to prohibition of ordinary citizens unrelated to the above applicant from passing by or using it for recreational activities. Therefore, the denial of the use of Seoul Plaza to the complainants was not resulted from the Mayor's disapproval; rather, the denial resulted from the passage blockade. Thus, we find the possibility of infringement on fundamental rights in the passage blockade.

B. Exhaustion of Other Remedies

The passage blockade may be disputed at an administrative court because it constitutes an actual exercise of power as a direct administrative compulsion, which creates a state required for its administrative purpose by using its force directly over the body or property of another. However, the respondent removed the police buses that had surrounded Seoul Plaza and lifted the passage blockade the next day after the complainants were stopped from entering SeoulPlaza.The situation made it unlikely that the complainants wouldget relief from administrative dispute procedure because the court

waslikely to find that the lawsuit would be lacking litigiousness.Ifwe were to compel exhaustion of prior remedial procedures insuch situation, it would only require unnecessary detours. Thus, the complainants' request for a constitutional adjudication in this case without first exhausting administrative dispute procedures should be permitted as an exception to the requirement of exhaustion.

C. Justiciable Interest

As the respondent removed the police buses that had surrounded Seoul Plaza on June 4, 2009 and lifted the passage blockade, nofurther infringement on the complainants' fundamental rights hassinceoccurred. Thus, even if this Court accepts the request for adjudicationhere, it may not offer the complainants personal relief of their rights.

The function of constitutional complaints, however, is not limited to personal relief of rights (subjective relief) but includes the protection of constitutional order (objective relief). When the same type of infringement may repeatedly occur in the future and the necessity to protect and maintain the constitutional order requires constitutionalelaboration, we must recognize the merit in the request for constitutionaladjudication (22-1(B) KCCR 621, 633, 2009Hun-Ma257, June 24, 2010). Moreover, the responses of the respondent to this complaint and the fact that after the barricade on June 4, 2009 wasremoved, the passage to Seoul Plaza was again blocked by surroundingpolice buses around June 27, 2009 against potential assemblies indicate that it is likely the same type of actions would repeat in the future. Therefore, the issue in this case, whether the respondent's passage blockade which restricted movement of people by blockading Seoul Plaza can be constitutionally justified for the reason to prevent illegal, violent rallies, is so essential that it requires constitutional elaboration in order to uphold and maintain the constitutional order. Hence, the request for constitutional adjudication in this case has justiciable interest.

IV. Review on Merits

A. Relevant Basic Rights

1. Freedom of residence and right to move at will

Freedom of residence and the right to move at will mean the freedom to decide a place for residence or stay without government interference. They ensure the freedom of individuals to shape their own life and promote the development of personality in every aspectof life including political, economic, social and cultural aspects (16-2(B)KCCR 86, 95, 2003Hun-Ka18, October 28, 2004). Bearingsuch meaningand functions, and being premised upon the considerationthat free exercise of will in choosing and changing the base of living is essential for personality development and economic activities of citizens, freedom of residence and the right to move at will denote the fundamental rights that protect individuals' free exercise of choosing and changing their locus of life, i.e., a place that is closely related to their daily life amounting to a place of residence or stay. The protection, however, does not cover an act of choosing and changing transitory places that do not amount to the base of living.

Here, Seoul Plaza cannot be deemed a locus of life for the complainants. Moreover, their acts of entering and moving around on Seoul Plaza do not constitute an act of shaping their lives around the place. Thus, the complainants' freedom to enter and travel on Seoul Plaza does not fall within the protected area covered by the freedom of residence and right to move at will under the Constitution. Therefore, we cannot conclude that the passage blockade restricted the complainants' freedom of residence or right to move at will.

2. Right to use public property

The complainants contend that the right to use public property is a claim-right that falls under the right to pursue happiness. Here, the right to use public property refers to the right to claim use of public property against the government when certain requirements are met.

However, the right to pursue happiness under Article 10 of the Constitution has the characteristic as a liberty right in a broad meaning such that it ensures citizens engage in activities in pursuit of happiness free from government interference (19-1 KCCR 276, 286, 2004Hun-Ma207, March 29, 2007). In contrast, the right to use public property, as the complainants argue themselves, is a right of claim, and such a right cannot fall under the right to pursue happiness that is a broad liberty right.

3. General freedom of action

The right to pursue happiness under Article 10 of the Constitution includes as an articulated form of the right, the right to general freedom of action. This right includes not only the right to act (positive right) but also the right not to act (negative right), giving it the characteristic as a broad liberty right (15-2(B) KCCR 185, 199, 2002Hun-Ma518, October 30, 2003).

Where a public property designated for public use is used for its intended purpose, people should be able to engage in such general or ordinary use without seeking permission by administrative authority. In that accord, the former "Ordinance on the Use and Management of Seoul Plaza" required permission only when a particular use restricts the free use of many ordinary citizens (Article 2 Section 1 of the Ordinance). Thus, the Ordinance granted without any restriction an individual's use of Seoul Plaza for general passage or recreational or cultural activities. Such use of a place open to the public is protected under the meaning of general freedom of action. The respondent in this case, however, prevented the complainants from engaging in such use by the passage blockade. Therefore, whether the complainant's general freedom of action was infringed upon is at issue.

B. Infringement on General Freedom of Action

1.Upon the death of former President Roh, Moo-Hyun on May 23, 2009, a memorial altar was set up at Deoksugung Daehanmun, which is located across Seoul Plaza. Many people came to the altar to

mourn and gathered around to commemorate the deceased. Because some people believed that the then on-going prosecutorial investigation against the former President was the cause of his the death, instances had occurred where people had skirmishes with police officers who were controlling passage of the area at that time.

The respondent blocked the passage of citizens to Seoul Plaza immediately after the death of former President Roh, Moo-Hyun by setting up a blockade with police buses surrounding Seoul Plaza. Except for one day, May 29, 2009, on which he removed the policebuses and allowed entry to Seoul Plaza for the public funeral ceremony,the respondent completely blocked the entry or passage of citizens on Seoul Plaza until it lifted the passage blockade during the morning of June 4, 2009.

2.The chance was not small that people who gathered around the memorial alter before Daehanmun to commemorate former President Roh, Moo-Hyun on and around May 23, 2009 would start a rally or protest. Therefore, if the passage blockade was made to protect citizens' life, liberty and property based on the determination that it was highly likely such rally or protest would turn into an illegal, violent one, the purpose of taking the action may be justified. The appropriateness of the means may also be found because in such case the passage blockade may have served as a means to achieve the purpose of preventing such unlawful and violent rallies.

3.However, even when illegal, violent rallies and protests are likely to occur, the preventive measure must be one within the scope of necessary minimum measures. When we reflect on the constitutional significance freedom of speech bears in a democratic country, less restrictive measures on the freedom of assembly, such as conditional allowance of assembly, should be considered first. Only when it is determined that such measure cannot achieve the public interest, prohibition and dispersal of assembly may become an option. In this case, however, the passage blockade was a sweeping, broad and extreme measure such that it was not limited to prohibiting individual assembly; rather, it banned all potential assemblies that could be held

in Seoul Plaza. Moreover, it prohibited the passage of the complainants,who are ordinary citizens, on Seoul Plaza. Such measure should be relied on only as a last resort when there is imminent, clear and grave danger that cannot be prevented by granting conditional permission or by ordering termination or dispersal of assembly on an individual basis.

Therefore, the mere fact that many people had gathered around Seoul Plaza to commemorate former President Roh, Moo-Hyun before the passage blockade was taken does not lead to a conclusion that people were about to engage in illegal and violent rallies or protests that could not be controlled by conditional permission or individual ban. It is true that some college students and other citizens had engaged in unlawful violent activities in the afternoon of May 30, 2009, occupying a road near Seoul Plaza, throwing rocks at and banging on the police buses, intruding into the buses and attackingpolice officers. Even so, however, there was no other episode afterwardsthat could be considered as an illegal, violent rally or protest. Hence, we cannot say that an imminent and clear danger remained in existence on June 3, 2009, four days after the incident of violence when the complainants were denied entry to Seoul Plaza, to justify the continued passage blockade.

Therefore, such a broad and complete restriction as the passage blockade cannot be deemed a minimum measure necessitated by the circumstances at that time.

4.Even assuming that a preventive measure was necessary to completely and entirely prevent assemblies because an imminent and grave danger existed that a rally and protest, which would invariably and directly threat public peace and order, would occur, the respondent must have foreseen that an outright ban on entry to Seoul Plaza would prevent even the use of other ordinary citizens, who did not intend to participate in unlawful violent rallies, for passage or recreational or cultural activities. Therefore, the respondent should have considered other means or method that did not cause excessive restriction as follows.

First, in terms of location, it was possible to make a few entrances and allow controlled entry, instead of completely blocking Seoul Plaza by surrounding it with police buses as in the passage blockade atissue. It would have prevented large-scale rallies, while allowingthe passage of individual citizens and their recreational activities. Additionally, in terms of the time and circumstances, it could have lifted the restriction and allowed the passage of pedestrians during certain hours of the day when the occurrence of a large-scale illegal, violent rally was unlikely or in the mornings when there was much traffic of people on the street near Seoul Plaza (June 3, 2009 was a weekday), considering the size of mourners who gathered around Seoul Plaza.

As such, a less restrictive means existed that would still haveachieved the purpose of maintaining pubic peace and order. The passageblockade nevertheless completely restricted movement of all citizens by the passage blockade without such consideration. It thereby failed to satisfy the principle of least restriction.

5.Further, while the public interest in protecting citizens' life, body and property against large-scale illegal, violent rallies and protests is important, the existence of such public interest and its actual effect appears somewhat hypothetical and abstract given the circumstances around Seoul Plaza at that time. It also appears that a less restrictive alternative could substantially have achieved such public interest. Therefore, we cannot conclude that the public interest protected by the passage blockade was greater than the actual and existing disadvantage to ordinary citizens who were prevented from passing through Seoul Plaza or engaging in recreational or cultural activities there. It thus failed to achieve balance of legal interests.

6.Therefore, we conclude that the passage blockade violated the principle against excessive restriction and thereby infringed on the complainants' general freedom of action.

V. Conclusion

The respondent's passage blockade was an infringement on the complainants' general freedom of action and thus should be voided as unconstitutional. However, the passage blockade is already terminated and no further infringement on fundamental rights currently occurs.Therefore, instead of voiding the action, we declare its unconstitutionalityand hereby decide as the holding of the Court. All Justices joined this opinion except for JusticesLee, Dong-Heub and Park, Han-Chul, who wrote a dissenting opinion as below (Part VII). Justices Kim, Jong-Dae and Song, Doo-Hwan wrote a concurring opinion as below (Part VI).

VI.Concurring Opinion of Justice Kim, Jong-Dae and Justice Song, Doo-Hwan

While we agree that the passage blockade violated the rule againstexcessive restriction, we think it is unconstitutional, more fundamentally, because of a violation of the principle of statutory reservation under the Constitution.

A.The principle of statutory reservation is a principle under the Constitution (Article 37 Section 2 of the Constitution) that provides that "[t]he freedoms and rights of citizens may be restricted by Actwhen necessary for national security, the maintenance of law and orderor for public welfare; however, even when such restriction is imposed, no essential aspect of the freedom or right shall be violated." This requires any government action that restricts fundamental rights of citizens have a statutory ground for the action.

Therefore, we first need to review whether the passage blockade has a statutory basis.

B.Whether Article 5 Section 2 and Article 6 Section 1 of the PoliceOfficers' Duties Act Provide a Statutory basis

We shall first consider whether Article 5 Section 2 and Article 6 Section of the Police Officers' Duties Act provide a statutory ground for the passage blockade, as the respondent contends.

1.Article 5 Section 2 of the Police Officers' Duties Act provides that "[the chief of a police agency] may restrict or prohibit access or passage to … important facilities of the State (such as the police agency and arsenal)" when it is "necessary for carrying out (a counter-espionage operation or) suppression of riot." Article 6 Section 1 of the same Act provides, "[i]f a police officer finds that a criminal act is about to be committed at the presence of the police officer, he … may stop such action when an urgent measure is needed…"

2.The provisions above are special enabling provisions that grantthe power of immediate administrative compulsion. Because an immediateadministrative compulsion is only allowed in exceptional cases where there is no other way to achieve the intended administrative purpose,we must apply strict interpretation as to the requirements for the invocationof such action.

Under such interpretation rule, the "riot" under Article 5 Section 2 of the Police Officers' Duties Act should be interpreted to mean "a situation where a large number of people assemble and engage in violent attack, assault or activity of damaging property that disturb peace and tranquility in the area." In addition, the "urgen[cy]" under Article 6 Section 1 of the same Act should mean "an exigent situation where the immediacy of harm from a criminal act leaves no other means but to instantly stop the concerned act."

3.There were indeed sporadic conflicts between citizens and police officers near Seoul Plaza around May 23, 2009, right after the death of former President Roh, Moo-Hyun. There was a skirmish aroundMay 30, 2009 between protestors and the police, in which the protestors,intending to hold People's Rally, occupied a road near Seoul Plaza and damaged the police buses. Nevertheless, the degree of conflictsdid not amount to the level that was likely to disturb the peaceand tranquility in the area. Moreover, there was no clash between protesters and the police at least on June 3, 2009, at the time that the respondent made the passage blockade against the complainants.

Therefore, Article 4 Section 2 of the Police Officers' Duties Act,

which requires existence of a "riot" as a precondition, cannot be a statutory basis for the passage blockade.

4.Further, the mere facts that people gathered around Seoul Plaza to commemorate former President Roh, Moo-Hyun, as discussed above in the Court's opinion regarding violation of the principle againstexcessive restriction, and that a skirmish had occurred between protestorsand the police as also discussed above, do not make us conclude that there was "an exigent situation where crime was about to occur" at the time concerned in this case when about four days had lapsed since the episode of conflict.

Therefore, Article 6 Section 1 of the Police Officers' Duties Act, which requires as a precondition the urgency of situation where crimeis likely to occur, cannot be a statutory ground for the passage blockade.

C.Whether Article 3 of the Police Act and Article 2 of the Police Officers' Duties Act Provide Statutory Basis

Because the respondent argues that the passage blockade was to carry out the police duties stipulated by Article 3 of the Police Act and Article 2 of the Police Officers' Duties Act, we review whether the concerned provisions are so called "general enabling provisions" that provide a legal basis for the passage blockade.

1.Article 3 of the Police Act (Duties of National Police) provides that "[t]he duties of the national police shall be to protect the lives, bodies and property of people, to prevent, suppress and investigate crimes, to collect information on public security, to control traffic and to otherwise maintain public peace and order." Article 2 of the Police Officers' Duties Act (Scope of Duties) provides that "[t]he police officershall carry out the following duties: 1. To prevent, suppress and investigatecrimes; … 4. To control traffic and prevent danger and injury; and, 5. To otherwise maintain public peace and order."

2.The provisions above stipulate the duties of the police and the scope of the duties of police officers. In other words, Article 3 of the

Police Act lays out a brief summary of the purposes of establishing the police as a national organization and its duties corresponding to the purposes. Article 2 of the Police Officers' Duties Act sets general limitation on the scope of duties for police officers as a qualification before it imposes duties on them.

The provisions above of such characteristics and contents cannot constitute so called "general enabling provisions" to serve as a basis to actually limit or deprive fundamental rights of citizens.

(A)Our Constitution requires that any restriction on freedoms and rights of citizens must be grounded upon "Act." The "Act" here does not include organizational regulations that generally set out matters such as purpose of establishment, status, responsibilities and scopeof duties; rather, it refers to provisions that work as operative laws applicable to individual or specific cases.

Therefore, the provisions of such characteristic as organizational regulations that set out the responsibilities of the police as an organization and the duties of police officers cannot be treated as a substantive law that provides a basis for the police to actually curtail fundamental rights of citizens.

(B)If the provisions above were to be interpreted as general enablingprovisions that may be invoked as a basis for restrictions on an individual or a specific fundamental right, it would be against the legislative intent behind the drafting of individual enabling provisions in detail about police operations as to their conditions and limitations.

In other words, Article 3 of the Police Officers' Duties Act and the subsequent provisions set strict requirements as to conditions andlimitations on each police operation such as stop and questioningor protective custody. Clearly, all of these police operations are predicatedupon the purpose of carrying out the responsibilities and duties of the police to protect lives, bodies and property of citizens, to prevent, suppress and investigate, and to maintain public peace and order. The effect would then be to make duplicates of the general enabling

provisions. Moreover, such interpretation may even allow an unlawful police operation that fails to satisfy the conditions set out under the individual enabling provisions, to be justified as a lawful operation under the general enabling provisions.

Granting the police such a broad authority to invoke actions would in effect override the legislative intent by judicial interpretation, when the legislature, by drafting each individual enabling provision in detail,intended to impose strict conditions for the invocation of police authority.

(C)Furthermore, while numerous examples exist in other statutes concerning organization of national agency that have provisions on the scope of duties and responsibilities, no cases are found where those provisions on the scope of duties and responsibilities are used as a basis for restriction of concrete basic rights.

For example, Article 4 of the Prosecutors' Office Act (Duties of Prosecutors) stipulates 'matters necessary for criminal investigation' (Article 4 Section 1 Item 1 of the same Act), nobody takes it to be interpreted as 'it provides a legal basis for prosecutors to do whatever necessary for criminal investigation.' Notwithstanding the provision in the Prosecutors' Office Act, a strict interpretation applies that any compulsory investigation by prosecutors must only be performed in compliance with the procedures under the Criminal Procedure Act.

If a prosecutor obtains evidence by compulsory investigation in violation of or in a way not recognized under the Criminal Procedure Act, the evidence is deemed 'illegally' obtained evidence and its evidentiary effect is denied. This is because the provision of the Prosecutors' Office Act is not considered a general enabling provision for restriction on fundamental rights.

We should not dismantle the principle of administration by the rule of law by nevertheless making an unparalleled exception for Article 3 of the Police Act and relying on the concept of so called 'general enabling provision.'

(D) Even if we were to conclude that Article 3 of the Police Act

and Article 2 of the Police Officers' Duties Act fall under general enabling provisions, they would still be held unconstitutional as the principle of clarity would be violated. In any event, in no way can they provide a constitutional legal basis.

To take the view that the provisions above are general enabling provisions would mean that we would accept those provisions as a provision indicating 'police officers may take necessary actions to maintain public peace and order.' In that case, the provision would make it completely unpredictable what a police officer could actually do under what circumstances; thus, it would violate the principle of clarity and be found unconstitutional.

D. Sub-conclusion

The respondent's passage blockade did not have a legal basis.Therefore,the passage blockade was (in addition to the violationof the principle against excessive restriction, more fundamentally) in violation of the principle of statutory reservation and thereby infringed on the complainants' freedom of general action.

VII.Dissenting Opinion of Justice Lee, Dong-Heub and Justice Park, Han-Chul

Unlike the majority opinion, we think that the passage blockade cannotbe deemed an unconstitutional exercise of government power and thus the request for adjudication by the complainants should be denied. Accordingly, we set forth below our dissenting opinion.

A. Whether the Principle of Statutory Reservation is Violated

1.The basic rights of citizens may be restricted if necessary for national security, maintenance of order or public welfare under Article 37 Section 2 of the Constitution. The means of restriction, however, must satisfy that it be directed by statute. Also, the degree ofrestriction must not violate the essence of the basic right and be limitedto the least necessary level. The principle of statutory reservation here as to restrictions on basic rights is what calls for'regulation backed by

statute,' and hence although it may not be requiredto be in the form of a statute, restriction must have a legalbasis (23-1(A) KCCR 157, 167, 2009Hun-Ma209, February 24, 2011).

Accordingly, governmental power exercised to restrict the complainants'freedom to have undisturbed passage and recreational activities in Seoul Plaza, as in the passage blockade at issue, must have a legal basis, and this question must be decided before we consider whetherthe passage blockade was in violation of the principle against excessiverestriction. Thus, it can hardly be explained why the majority opinion,while failing to render an explicit holding as to whether the governmentalexercise of power in the passage blockade had its legal basis, proceededto consider violation of the principle against excessive restriction.

2.First, the passage blockade does not constitute a restriction of entry or passage to important government facilities to suppress riotunder Article 5 Section 2 of the Police Officers' Duties Act.Moreover,it cannot be deemed to be a warning for prevention of crimeor a suppression of attempted criminal acts. Thus, these provisions cannot be a legal basis for the passage blockade.

However, the passage blockade was a restriction on citizens' free use of public property for the purpose of maintaining public peace and order and may find its legal basis in Article 3 of the Police Act and Article 2 of the Police Officers' Duties Act. Article 3 of the Police Act, under the subject of "Duties of National Police," sets out that "[t]he duties of the national police shall be to protect the lives, bodies and property of people, to prevent, suppress and investigate crimes, to collect information on public security, to control traffic and to otherwise maintain public peace and order." Article 2 of the Police Officers' Duties Act, under the subject of "Scope of Duties," provides a list of police officers' duties from Item 1 through Item 5. Among the enumerated duties, Item 5 prescribes the duty of a police officer to "otherwise maintain public peace and order." These provisions concern responsibilities of the police and duties of police officers and,as such, may be interpreted as general enabling provisions that prescribeas a duty of the police "otherwise maintain[ing]public peace and order."

Regarding whether such general enabling provisions serve as a legal basis on which the police authority can be invoked, sufficient factors indicate that they do: it is impossible in terms of legislative technique to thoroughly stipulate all the conditions and effects of invoking police authority in the form of individual enabling provisions; considering that a sudden, unpredicted situation can always occur depending on social and economic circumstances, we cannot deny the practical necessity for general enabling provisions that make timely and efficient exercise of police authority possible; general enabling provisions work as a supplement to individual provisions, being limitedly applied when individual enabling provision is absent, and the chance of general enabling provisions being abused is not great because sufficient principles are established under customary law regarding exercise of police authority, including the principle of passive police involvement,the principle of police as public servant, the principle of proportionalityin use of police authority, the principle of police responsibility, and the principle of police equality; and even if an overbroad interpretation or abuse of power based on such interpretation might occur, the courts may sufficiently restrain such abuse. These indicate that general enabling provisions can make a legal basis for invoking police authority. Although Article 3 of the Police Act and Article 2 of the Police Officers' Duties Act use a rather abstract concept, "maintaining public peace and order," the respondent, who holds the power to exercise police authority, has sufficient capacity to discern its meaning based on all the matters concerned. Therefore, the mere fact that the statutes fail to lay out concrete, detailed conditions for invocation of police authority does not render them ambiguous to be used as a qualifying norm against the holder of public authority or to necessarily result in excessive restrictions.

3.Therefore, Article 3 of the Police Act and Article 2 of the Police Officers Act are not provisions merely stipulating the duties and responsibilities of the police; rather, they function as a legal basis for exercise of police authority when there is no pertinent individual enabling provision.These provisions provided the basis for the passage blockade for maintenance of public peace and order, and the action therefore cannot be deemed a violation of the principle of statutory reservation.

B.Whether Basic Rights are Infringed

1. Relevant basic right

Article 10 of the Constitution, in its first sentence, protects the right to pursue happiness, stating "[a]ll citizens shall be assured of human dignity and worth and have the right to pursue happiness." The right includes the general freedom of action as a concrete form thereof, because everyone must be guaranteed to freely form their own opinions and have a self-directed life based on the opinions (3 KCCR 268, 275, 89Hun-Ma204, June 3, 1991).

The right at issue in this case, that is, the right to freely use Seoul Plaza for ordinary passage or for recreational or cultural activities, falls within the protected area under the general freedom of action derived from Article 10 of the Constitution. Therefore, we need to see whether the passage blockade exceeded the boundary of permissiblerestrictions on the basic right and thereby infringed on the complainants'general freedom of action.

2. Standard of review

The decision on whether or not to exercise police authority is in principle under the police's discretion, and in determining whether the maintenance of public peace and order or some other reason requires an exercise of police authority, the necessity to protect citizen's life and liberty, prevent crimes and maintain public peace and order must be reasonably considered. Unless such determination is found to be substantially arbitrary, therefore, the respondent's judgment as to the exercise of police authority must be respected as a general rule. Especially, in a case like this where, rather than basic rights such as freedom of expression, which has particular importance in democratic country, or bodily freedom that may be seriously interfered, the primary issue concerns general freedom of action in the context of general use of public property that inevitably arises when restricting the use of public property, a more relaxed standard of review should be applied than the principle of proportionality.

3. Infringement on the general freedom of action

(A) As acknowledged in the majority opinion, the passage blockadewas made in a situation where people were frenzied about commemoratingand were holding several small-sized rallies near Seoul Plaza. It was thus intended to prevent any potential danger that a massive number of people, if gathered in Seoul Plaza at the same time, might develop into illegal, violent rallies or protests, and thereby aimed to protect citizens' life, body and property. Seoul Plaza, to which the passage of the complainants were blocked, is located near Ducksugung where the memorial altar was set up and not far from important public facilitiesincluding Cheongwadae, Central Government Complex, and the Embassyof the United States. Moreover, the specific characteristic of the location as an open place in the hub area with a large traffic of people makes it more likely that any incident of illegal rally or violence in Seoul Plaza would have great impact on the ordinary people as well as public facilities, causing disorder and danger. Considering that a skirmish in fact took place between the police andsome citizens in the course of setting up the memorial altar andthat illegal, violent rallies or protests were very likely at the time considering political instability and anti-governmental public sentiment upon the death of former President Roh, Moo-Hyun, the action that restricted the complainants from passing through Seoul Plaza for the purpose of preventing such incidents from happening cannot be considered a clearly unreasonable exercise of government authority.

(B)The passage blockade was not a complete ban of all passages or cultural and recreational activities in Seoul Plaza against the complainants; rather, it merely restricted general use in a limited area, namely Seoul Plaza which carries distinctiveness in its location, during the limited time close to the memorial period for the former President. The complainants, although they may have been more or less inconvenienced, were able not only to use other temporary passage ways or detour path but also to find other open places for their recreational activities. Thus, no circumstances indicate that the scope

of limitation as to place and time in the passage blockade was excessivelybroad or had potential to turn into an unconstrained restriction.

The majority opinion contends that the passage blockade, by not only prohibiting all rallies in Seoul Plaza but also banning passagethrough Seoul Plaza against the complainants when other lessrestrictivemeans exist, violated the principle against excessive restriction.However, in case that a conditional or individual permission of rally leads to the exclusive use of the Plaza by rally participants, the restriction that would follow upon the general freedom of action of ordinary citizens not participating in rallies in relation to their passage and recreational activities in Seoul Plaza, may not be less than that of the passage blockade. Further, at the time that the passage blockade was imposed,there was a high likelihood that a rally, even if permission was grantedconditionally or individually, would turn into illegal, violent rallies orprotests and put the life and body of ordinary citizens at risk of danger.Therefore, we cannot agree with the majority's contention that such means are less restrictive and that thus a violation of the principle against excessive restriction has occurred.

In addition, the majority opinion maintains that, even if there was a need for the passage blockade, the complainants' general freedom of action could have been less restricted by leaving several entrances open, instead of completely blockading Seoul Plaza by surrounding it with police buses, and allowing individual citizens to pass or have recreational activities in Seoul Plaza under the police's control, or by lifting the restriction during certain hours of the day when a large-scale rally is unlikely to occur or in the mornings when there ismuch traffic of people on the street. However, the purpose of barricadingSeoul Plaza with the buses was to prevent illegal entry of people who intended to hold illegal rallies, as well as any potential physical conflicts between citizens and the police that could have happened during the course. If the means of leaving some entrances open and allowing individuals' passage or recreational activities had been adopted as argued in the majority opinion, it would have been necessary to verify the purpose of entry to the Plaza of individuals one by one in

order to differentiate between those who intended to pass or have recreational activities and those who intended to hold illegal rallies.Such verification of one's real intention is, however, realistically impossibleand does not prevent the possibility of people entering into Seoul Plaza by lying about their purpose. Hence, the original purpose of the exercise of police authority to prevent illegal, violent rallies or protests and thereby to protect the life and body of citizens cannot be achieved by such means. Further, because there was a constant threat that large-scale illegal, violent rallies would occur at the time that the passage blockade was applied, the argument for partial permission of passage during certain hours such as mornings of weekdays does not pose as a realistic alternative either. Therefore, it is inapposite to conclude that the passage blockade violates the principle of least restriction by recognizing those means as less restrictive.

(C)The disadvantage to the complainants the passage blockade caused was a mere inconvenience that they could not enjoy the general use of the Plaza including recreational activities during a certain period of time in a specific place, Seoul Plaza, or that they had to take detours because they could not pass across the Plaza. Such disadvantage cannot be deemed significantly greater than the public interest in protecting citizens' life, body and property from any potential illegal, violent rallies. The passage blockade thus meets the balance of legal interests. Therefore, in our view, the passage blockade did not violate the complainants' general freedom of action.

C. Sub-conclusion

In conclusion, the passage blockade cannot be held to be in violation of the principle of statutory reservation because it was an exercise of governmental authority based on Article 3 of the Police Act and Article 2 of the Police Officers' Duties Act. Nor does it constitute an unconstitutional exercise of governmental authority for its unreasonableness or excessiveness that infringes on the complainants' general freedom of action, because it was a mere restriction on

citizens' general use of a specific public asset during a limited period of time, after considering the totality of circumstances including the distinctiveness of Seoul Plaza in terms of location and the particular situation present at that time. Therefore, the instant constitutional complaint should be denied.

Justice Lee, Kang-Kook (Presiding Justice), Cho, Dae-Hyun, Kim, Jong-Dae,Min, Hyeong-Ki, Lee, Dong-Heub, Mok, Young-Joon, Song, Doo-Hwan, Park, Han-Chul, Lee, Jung-Mi

참조판례

피인용판례

참조조문

판례관련자료