[2018Hun-Ba137, July 26, 2018] * First Draft

In this case, the Constitutional Court held that the part “all levels of courts” in Article 11 Item 1 of the Assembly and Demonstration Act stating that any person holding any outdoor assembly or demonstration anywhere within a 100-meter radius from the boundary of all levels of courts shall be subject to criminal punishment, and also the part concerning “all levels of courts” in Article 11 Item 1 under Article 23 Item 1 of the same Act violate the rule against excessive restriction, thereby infringing upon the freedom of assembly.

Background of the Case

The complainant was prosecuted for holding an assembly at the front gate of the Supreme Prosecutors’ Office located within a 100-meter radius from the boundary of the Supreme Court and found guilty at the trial court. The complainant appealed and filed a motion to request a constitutional review, and upon rejection, filed a constitutional complaint.

Subject Matter of Review

The subject matter of review in this case is whether the part “all levels of courts” in Article 11 Item 1 and the part concerning “all levels of courts” in Article 11 Item 1 under Article 23 Item 1 (“Provisions at issue”) of the Assembly and Demonstration Act (wholly amended by Act. No. 8424 on May 11, 2007) 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 sentence 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

Summary of the Decision

1. Whether the freedom of assembly was infringed upon

Independence of judges, the key to a fair trial, includes independence from any influence or pressure of society as well as independence from intervention of other government institutes or the judiciary itself. The legislative purpose of the Provisions at issue is to prevent the attempt to affect the independence of the courts by holding an assembly in front of courts. Such a purpose is justifiable based on the demand of the Constitution to ensure independence of judges and a fair trial. In the meantime,

establishing places to ban assemblies and demonstrations in the proximity of all levels of courts is an appropriate means of serving the legislative purpose.

If a general presumption that outdoor assemblies or demonstrations held near the courts may affect their ongoing trials can be repudiated in specific circumstances, the legislature is required to amend related provisions so that outdoor assemblies or demonstrations can be permitted under exceptional conditions even in the vicinity of the courts.

Some assemblies, even when they are held near the courts, are unlikely to threaten the independence of judges or affect trials. For example, assemblies held against other national agencies near the courts such as the prosecutors’ offices, or those targeting corporate entities or individuals have little concern of influencing the courts. And even if they are held with the courts in mind, they may merely intend to make their voices heard about judicial administration that is irrelevant to the independence of judges or trials on specific cases.

The Provisions at issue are aimed to protect the courts from multiple pressures and to deter all possible influences on cases under trial. However, the Assembly and Demonstration Act has other restrictive provisions besides the Provisions at issue, to protect the courts depending on the nature and conditions of the assemblies and demonstrations. The legislative purpose of the Provisions at issue will be served by the above-mentioned provisions even if outdoor assemblies and demonstrations are exceptionally permitted the vicinity of all levels of courts.

As the Provisions at issue uniformly and totally ban outdoor assemblies and demonstrations including those which do not need to be restricted or may be given exceptional permission, beyond the minimum scope needed to serve the legislative purpose, they violate the principle of minimum restriction.

By restricting not only assemblies and demonstrations that are likely to affect the independence of judges or the courts’ trials, but by totally banning all outdoor assemblies in the proximity of all levels of courts, the Provisions at issue violate the balance of interests.

The Provisions at issue infringe upon the freedom of assembly by violating the principle against excessive restriction.

2. Decision of nonconformity to the Constitution

The Provisions at issue banning outdoor assemblies and demonstrations in the vicinity of all levels of courts have both constitutional and unconstitutional parts. It is within the discretion of the lawmakers to take into account circumstances that are certain not to affect the independence of judges or cases under trial and determine which outdoor assemblies and demonstrations are exceptionally permissible.

Therefore, as the Provisions at issue have constitutional aspects, the Court delivers a decision of nonconformity to the Constitution and orders continued application of the Provision as issue until the legislature amends it by December 31, 2019. If amendment is not made until such date, the Provisions at issue shall lose effect as of January 1, 2020.

* This translation is provisional and subject to revision.

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