[2013Hun-Ba322, 2016Hun-Ba354, 2017Hun-Ba360 · 398 · 471, 2018Hun-Ka3 · 4 · 9 (consolidated), May 31, 2018] * First Draft

In this case, the Court held that the parts concerning “the National Assembly building” of Article 11 Item 1 and the part of Article 23 concerning “the National Assembly building” of Article 11 Item 1 of the Assembly and Demonstration Act (amended by Act No. 8424 on May 11, 2007), which prohibit outdoor assemblies or demonstrations within a 100-meter radius from the boundary of the National Assembly building and prescribe the penalty thereof, infringe upon the freedom of assembly and thus violate the Constitution.

Background of the Case

The petitioner was charged at the Seoul Central District Court for participating in an assembly held on the right-hand side riverbank running from the north gate to the east gate of the National Assembly building, 30m to 40m away from the boundary thereof.

While the trial in the first instance was pending, the petitioner requested a constitutional review of the part concerning “the National Assembly building” of Article 11 Item 1 of the Assembly and Demonstration Act with the Seoul Central District Court, which was rejected by the same court. Thereupon, the petitioner filed this constitutional complaint.

Subject Matter of Review

The subject matter of review in this case is whether the part concerning “the National Assembly building” of Article 11 Item 1 and the part of Article 23 concerning “the National Assembly building” of Article 11 Item 1 of the Assembly and Demonstration Act (wholly amended by Act No. 8424 on May 11, 2007) (hereinafter collectively referred to as the “Instant Provisions”) violate the Constitution.

Provisions at Issue

Assembly and Demonstration Act (wholly amended by Act No. 8424 on May 11, 2007)

Article 11 (Places Prohibited for Outdoor Assembly and Demonstration)

No person may hold any outdoor assembly or stage any demonstration anywhere within a 100-meter radius from the boundary of the following office buildings or residences:

1. The National Assembly building, all levels of courts, and the Constitutional Court.

Article 23 (Penal Provisions)

Any person who violates the main text of Article 10 or Article 11, or who violates the ban as provided for in Article 12, shall be punished according to the following classification of offenders:

1. The organizer shall be punished by imprisonment for not more than one year, or by a fine not exceeding one million won;

2. The moderator shall be punished by imprisonment for not more than six months, a fine not exceeding 500,000 won, penal detention, or a minor fine; and

3. A person who participates in an assembly or demonstration with the knowledge of the fact shall be punished by a fine not exceeding 500,000 won, penal detention, or a minor fine.

Summary of the Decision

1. Whether the freedom of assembly has been infringed upon

The National Assembly serves an important role in determining national policies, as it enacts or amends statutes, as a body representing the people, and exercises strong

control over the executive branch, as an authority controlling national affairs. Thus, the function and role of the National Assembly, given their unique nature and significance, require special and sufficient protection.

The legislative purposes of the Instant Provisions are legitimate, since they aim to ensure that National Assembly members and staffs employed at the National Assembly, and members of the general public and public officials attending the National Assembly to make statements, to perform their duties by freely entering the National Assembly building under no pressure or threat, while also intending to guarantee the safety of National Assembly facilities including the National Assembly building. The complete prohibition of outdoor assemblies within a 100-meter radius from the boundary of the National Assembly building (hereinafter referred to as “nearby the National Assembly building”) help protect the National Assembly’s function, and thus satisfies the appropriateness of means.

The constitutional role of the National Assembly can coexist with assemblies being held nearby the National Assembly building; in fact, they may help the National Assembly stay more true to its constitutional role. As National Assembly members must perform their duties conscientiously by putting national interests first, given the National Assembly’s role of “gathering public opinion,” the necessity to protect the National Assembly from unreasonable duress exercised by specific persons or certain forces should, as a rule, be limited to protection from potential physical duress or harm against National Assembly members and from the risk of threats against entry into, or the safety of, National Assembly facilities including the National Assembly building.

Considering the legislative purpose of the Instant Provisions, the “National Assembly building” can be interpreted to mean the entirety of the National Assembly site where National Assembly functions take place, including the Members’ Office Building and the National Assembly Library. However, such an interpretation would lead to the inclusion of areas unrelated to entry into the National Assembly building, and areas separated from the National Assembly site by roads as well as nearby parks and green spaces, in the scope of the areas where assemblies are prohibited. Further, a fence is installed on the boundary of the National Assembly site and significant space lies between the fence and National Assembly facilities such as the National Assembly building, which guarantee the constitutional function of the National Assembly.

The general presumption is that assemblies held nearby the National Assembly building

pose a direct threat to the legal interests protected by the Instant Provisions. If this presumption can be refuted by specific situations, the legislature must prescribe the Instant Provisions to allow outdoor assemblies as an exception. For instance, in cases where the constitutional function of the National Assembly is not, or highly unlikely to be, infringed upon by outdoor assemblies - such as in the case of small-scale assemblies that are unlikely to directly undermine the National Assembly’s function, assemblies held on public holidays or when the National Assembly is in recess, or assemblies that are not against the National Assembly’s activities or that intend to influence the National Assembly in an indirect manner - the legislature should acknowledge exceptions to mitigate the possibility of excessively restricting the freedom of assembly through the Instant Provisions.

There is, of course, a possibility that the constitutional function of the National Assembly may be harmed when violent, illegal and large-scale assemblies take place nearby the National Assembly building. However, the Assembly and Demonstration Act prescribes diverse regulatory measures to deal with such situations, and any acts of violence or obstruction of work that occur during the assemblies are punished as crimes under criminal law.

In sum, the Instant Provisions go beyond the minimum scope necessary for achieving their legislative purpose, by uniformly and completely prohibiting assemblies that do not require regulation or can be permitted as an exception. Therefore, the Instant Provisions violate the rule of minimum restriction.

2. Decision of nonconformity to the Constitution (temporary application)

The prohibition of outdoor assemblies nearby the National Assembly building imposed by the Instant Provisions contains both unconstitutional and constitutional elements. We thus deliver a decision of nonconformity to the Constitution, and order the temporary application of the Instant Provisions until amendments are made by the legislature by December 31, 2019.

* This translation is provisional and subject to revision.

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