II. Summaries of Opinions

1.Case on the prior notice of outdoor assembly or demonstration

[26-1(A) KCCR 34, 2011Hun-Ba174·282·285, 2012Hun-Ba39·64·240(consolidated),January 28, 2014]

In this case, the Constitutional Court held that the part related to the main text of Article 6 Section 1 in Article 22 Section 2 of the Assembly and Demonstration Act (hereinafter, the ‘Instant Provision’) that punishes the organizers of outdoor assemblies and demonstrations who fail to report in advance does not violate the Constitution. This decision clarifies that anyone who intends to organize an urgent assembly that cannot be reported within the time limit set by the Assembly and Demonstration Act shall notify a competent agency as long as it is possible to file a notification, and any urgent assembly reported as immediately as possible will not be punished since the Instant Provision is not applied to such a case.

Background of the Case

Complainants Kim ○-Hui and Lee ○-Taek were indicted in the Seoul District Court for holding an unreported assembly at the Gwangwhamun square on May 10, 2010 from 12:10 p.m. to 12:40 p.m., as they picketed for “Freedom of Speech on the Internet”, etc., standing at intervals of 6 to 7 meters (2010Go-Jung6515). While the case was pending, the complainants filed a motion to request a constitutional review of Article 22 Section 2 and Article 6 Section 1 of the Assembly and Demonstration Act (hereinafter, the ‘Act’). As the motion was dismissed on July 28, 2011 (2011Choki2246), the complainants filed this constitutional complaint with the Constitutional Court on August 8, 2011 (2011Hun-Ba174).

Provisions at Issue

The subject matter of this case is whether the part related to the main text of Article 6 Section 1 in Article 22 Section 2 of the Act violates the Constitution. The provision at issue and related provisions in this case are as follows:

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

Article 22 (penal provision) (2) Any person who violates the provisions of Article 5 Section 1 or Article 6 Section 1 or who holds an assembly or stages a demonstration against which a notice of ban has been issued under Article 8 shall be punished by imprisonment for not more than two years or by a fine not exceeding two million won.

Article 6 (Report, etc. on Outdoor Assembly or Demonstration) (1) Any person who desires to hold an outdoor assembly or to stage a demonstration shall, from 720 to 48 hours before such assembly or demonstration is held, submit a report on the details in all the following subparagraphs to the chief of the competent police station: Provided, That if two or more police stations have jurisdiction over such assembly or demonstration, such report shall be submitted to the commissioner of the competent regional police agency, and if two or more regional police agencies have jurisdiction over it, such report shall be submitted to the commissioner of the competent regional police agency exercising jurisdiction over the place where it takes place.

Summary of the Decision

1. Whether the Instant Provision violates the rule of clarity under the principle of nulla poena sine lege

It is generally understood that the term ‘assembly’ refers to a temporarygathering of a group of people in a specific place with specific objectives,and the ‘formation of inner tie’ can be sufficient to be the common objectives. As a reasonable person with general legal awareness would infer the meaning of ‘assembly’ from the above mentioned explanation, the definition of ‘assembly’ is not unclear. Therefore, we find that the Instant Provision is not against the rule of clarity under the principle of nulla poena sine lege.

2.Whether the Instant Provision violates the principle of prohibition against prior permit under Article 21 Section 1 of the Constitution

The prior notice requirement under the Act is a report requirement as a duty to cooperate, in order to provide administrative agencies including police departments with some time to prepare necessary steps for the smooth and safe running of assemblies. Generally, the Act, in principle, guarantees outdoor assembly and demonstration as far as it is properly reported. Therefore, the prior notice requirement does not violate the principle of prohibition against prior permit under Article 21 Section 1 of the Constitution.

3.Whether the Instant Provision infringes on the freedom of assembly in violation of the principle against excessive restriction

The details to be reported under the Instant Provision are necessary and important information to prevent multiple assemblies or demonstrations from overlapping and to prepare relevant agencies to take appropriate measures in advance to keep public safety. The prior report requirementin which an assembly is needed to be reported at least 48 hours before the assembly takes places is stipulated in order to secure sufficient timefor the necessary procedures, such as supplementing incomplete documentation after the prior report, sending notice of prohibition to applicants and filing objection to the prohibition notice in return, etc., to

run smoothly and therefore, the Instant Provision cannot be considered to be an excessive restriction.

Based on Article 21 Section 1 of the Constitution, the Instant Provision can be construed that so-called ‘urgent assembly’, an outdoor assembly that cannot be reported within the time limit stipulated in the Act although it has been planned in advance and an organizer exists, should be reported as promptly as possible once it becomes possible. Any urgent assembly reported as immediately as possible will not punished since the Instant Provision should not be applied to such a case. Therefore, the Instant Provision does not infringe on the freedom of assembly in violation of the principle against excessive restriction.

4. Whether the Instant Provision imposes excessive punishment

As it is highly possible that holding an unreported outdoor assembly cancause threat to the public safety and it goes against the administrative purpose of the report requirement, the Instant Provision, which imposes administrative penalty on such unreported outdoor assemblies, does not infringe on the freedom of assembly and the statutory sentence cannot beconsidered excessive, outside the scope of legislative discretion. Therefore,Instant Provision does not impose excessive punishment.

Summary of the Dissenting Opinion by Four Justices

1.Whether the part of ‘urgent assembly’ violates the principle against excessive restriction

The Act does not provide any measures for an urgent assembly, which is hard to satisfy the report requirement, to be properly and legally held such as making it possible to defer the report requirement or to notify an assembly on-site. The language of the Instant Provision is vague in that it does not clearly stipulate whether organizers are not allowed to report an urgent assembly under Article 6 Section 1 of the Act if less

than 48 hours are left from the planning to the beginning of such an assembly or, if the Instant Provision is considered to impose a duty to report an urgent assembly, when such a report should be made. Andsuch vagueness causes confusion to those who are obliged to abide bythe Instant Provision. Therefore, the Instant Provision’s blanket imposition of the duty to file a prior report for all kinds of outdoor assemblies, without providing for exception to the case of urgent assembly, infringes the complainants’ freedom of assembly, in violation of the principle against excessive restriction.

2. Whether the Instant Provision imposes excessive punishment

The duty to report an assembly in advance is not more than the duty to cooperate in administrative process, and administrative sanctions suchas imposition of fine are enough for such cooperative duty to be properlycarried out. But the Instant Provision, by imposing criminal penalty including imprisonment, can cause chilling effect on the freedom of assembly guaranteed by the Constitution, which in fact amounts to allowing the report system to function as the permit system, contrary to the original purpose of the report system. The Instant Provision which imposes the same punishment on the organizers of unreported outdoor assemblies as those of illegal assemblies or demonstrations prohibited by the Act should be considered to stipulate excessive punishment beyond the limit of the state’s punishment power under the rule of law, as it imposes the same penalty for the two totally different conducts with different level of infringement on legal interests.