6. Case on the Prohibition of Nighttime Demonstration

[26-1(A) KCCR 324, 2010Hun-Ka2, 2012Hun-Ka13 (consolidated), March27, 2014]

In this case, the Constitutional Court held that Article 10 of the Assembly and Demonstration Act that stipulates that ‘[n]o one may stage any demonstration either before sunrise or after sunset’ as well as its penal provision, Article 23 Item 3 of the Act are unconstitutional by infringing the freedom of demonstration under the principle against excessive restriction if these provisions are applicable to the ‘demonstration from sunset to midnight (24:00) of the same day’.

Introduction of Case

(1)The petitioner at the requesting court of 2010Hun-Ka2 was charged with the violation of the Assembly and Demonstration Act by allegedly staging a demonstration from 19:15 to 21:50; and the petitioner at the requesting court of 2012Hun-Ka13 was charged with the violation of the Assembly and Demonstration Act by allegedly staging a demonstration from 18:00 to 21:00.

(2) During the criminal trials, the petitioners filed motions to request for the constitutional review on Article 10 and Article 23 Item 3 of the Assembly and Demonstration Act. The trial courts granted the motions and requested constitutional reviews on the aforementioned provisions.

Provision at Issue

The subject matter of review is the constitutionality of the part of ‘demonstration’ of the main text of Article 10 of the Assembly and Demonstration Act (revised by Act No. 8424 on May 11, 2007, hereinafter, “ADA”) (hereinafter, the “instant provision”) and the part of ‘demonstration’ of the part of the ‘main sentence of Article 10’ of Article 23 Item 3 of the ADA. The provisions at issue are as follows:

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

Article10 (Hours Prohibited for Outdoor Assembly and Demonstration)

No one may hold any outdoor assembly or stage any demonstration either before sunrise or after sunset: Provided, That the head of the competent police authority may grant permission for an outdoor assembly to be held even before sunrise or even after sunset along with specified conditions for the maintenance of order if the organizer reports the holding of such assembly in advance with moderators assigned for such occasion as far as the nature of such event makes it inevitable to hold the event during such hours.

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:

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 Decision

1. Definition of ‘Demonstration’ under the ADA

The term “demonstration” under the ADA means an act of persons associated under common objectives (i) parading along public places available for the free movement of the general public, such as roads, plazas, parks, etc., with the aim of exerting influence on the opinions of a large number of unspecified persons or overwhelming them, or (ii) displaying their will or vigorous determination with the aim of exerting influence on the opinions of a large number of unspecified persons or overwhelming them. It is not required to demonstrate at public places where people can freely pass or move places, such as parading. The

proviso of Article 10 of the ADA that grants an exception for outdoor assemblies before sunrise or after sunset does not apply to demonstrations.

2.Whether the Unconditional Ban on the Nighttime Demonstration Infringes the Freedom of Demonstration

Demonstration would cause more conflicts with public safety and order when it is compared to individual expression of an opinion, in that it is associated with the collective actions of many persons; and affect significantly the public safety and order, legal peace and serenity of others, generally compared to assembly or outdoor assembly. Nighttime, which is a special time frame when the citizens strongly seek serenity,may affect participants of a demonstration more, in stimulating sensitivityof emotions, beclouding reasonable judgment, or losing self-control, compared to daytime. In nighttime demonstrations, it is more difficult to maintain the public order and to respond to unexpected violent situationsthan daytime demonstrations. The prohibition on nighttime demonstrationsunder the instant provision is an appropriate means to achieve a legitimate purpose in that it intends to protect the safety and order of our society and maintain peace of the residence and private life of the citizens, considering the nature and unique character of nighttime demonstrations. Nonetheless, the instant provision would prevent daytime workers or students from staging or participating in a demonstration in case of weekdays in winter season, when daytime is short: It impliesthat the freedom of demonstration is substantially infringed or degenerated.In the modern urbanized and industrialized society, the broad and variable traditional meaning of nighttime, which is ‘before sunrise or after sunset’, does not present the aforementioned nature or distinctiveness of‘night time’ in a clear sense. The aforementioned nature of distinctivenessof ‘nighttime’ would correspond to the unique danger of ‘late night’. Considering that the instant provision prohibits a demonstration ‘either before sunrise or after sunset’, which is a broad and variable time frame,it violates the principle of least restriction beyond the reasonable necessity

to achieve the legislative purpose; and it also violates the principle of balance of legal interests by excessively restricting the freedom of demonstration for the public interests protected by the instant provision. Therefore, the instant provision infringes the freedom of demonstration by violating the principle against excessive restriction.

3. Necessity to Limit the Unconstitutional Part

The instant provision includes the constitutional part as well as the unconstitutional part. It should be vested in the Legislature to determine the appropriate means to achieve the legislative purpose while restricting the freedom of demonstration in the least manner, among variable alternatives. Accordingly, we have rendered the incompatibility decision to apply tentatively the ADA provision that prohibited a nighttime outdoor assembly in 2008Hun-Ka25 Decision. Nonetheless, the failure of legislative revision led to the nullification of the entire provision prohibiting a nighttime outdoor assembly, resulting in nighttime outdoor assembly being regulated the same as daytime outdoor assembly. Meaningful numbers of increase in illegal or violent assemblies have not been reported, but we are not convinced that nighttime demonstrations do not require any stricter regulation. With the comprehensive considerations of the legal vacuum and practical issues after theaforementioned incompatibility decision (2008Hun-Ka25), we do not agreeto the necessity to permit to apply tentatively the provision incompatible with the Constitution. On the other hand, if the instant provision is decided incompatible with the Constitution and suspended completely, practical problems would arise in that nighttime outdoor assemblies and demonstrations would be regulated as daytime outdoor assemblies anddemonstrations, implying the difficulty to correspond to the dangerousnessof the public order or legal peace in case of nighttime outdoor assemblies or demonstrations, despite of the needs of stricter regulations. Therefore, we declare the instant provision unconstitutional as long as it completely prohibits nighttime demonstrations, under the ADA’s current

regulation frame that employs time frame as a standard to distinguish between the constitutional part and unconstitutional part of the instant provision. The instant provision and its penal provision, Article 23 Item 3 of the ADA, are unconstitutional when it is applied to a demonstration ‘from sunset to 24:00 of the same day’, which belongs to the daily living time frame.

Summary of Dissenting Opinion by Three Justices

1.Whether the Unconstitutional Ban on Nighttime Demonstrations Infringes the Freedom of Demonstration

We agree to the majority opinion in a sense that the provisions at issue that completely prohibit nighttime demonstrations are unconstitutional by excessively infringing the freedom of demonstration.

2. Opinion of Unconstitutional Decision

Even if a part of provision were unconstitutional, it would be the principleto decide unconstitutional the whole provision if the unconstitutional part is not clearly distinguished. The provisions at issue that prohibit nighttime demonstrations include unconstitutional parts as well as constitutional parts. Nonetheless, it would not always be ideal for the Constitutional Court to specify the unconstitutional part of nighttime demonstrations. It would be more desirable for the Legislature to determine the specific ways and means to coordinate public safety and order and serenity of privacy. If the Constitutional Court applies a certain time frame to determine the limits of unconstitutional parts and constitutional parts of the provisions at issue, it might violate the principle of separation of powers and the nature of constitutional review on statutes by restricting the legislative powers and responsibilities of the Legislature. Accordingly, the principle to declare unconstitutional the entire provision at issue should be observed in that the unconstitutional

parts of the provision at issue are not clearly distinguished and specified according to a certain time frame.