39. Case on Prohibition of Assemblies Near the National Assembly

[21-1(B) KCCR 745, 2006Hun-Ba20 · 59 (consolidated) December 29, 2009]

In this case, the Constitutional Court decided that the portion of Article 11 Item 1 of the Assembly and Demonstration Act concerning the "National Assembly building", which provides that no person may hold any outdoor assembly or stage any demonstration anywhere within a 100-meter radius from the boundary of the office building, is not in violation of the Constitution.

Background of the Case

The petitioners were prosecuted on charges of holding assemblies within the 100-meter radius from the boundary of the National Assembly building and convicted in the court of first instance. They appealed the case and filed a motion to request for the constitutional review of the underlying Article 11 Item 1 of the Assembly and Demonstration Act, arguing that the provision violated the freedom of assembly and thus the Constitution. However, when the motion was denied, they filed this constitutional complaint.

Provision at Issue

Assembly and Demonstration Act (later revised by Act No. 7123 on Jan. 29, 2004 and wholly revised 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;

Summary of the Decision

In a vote of 5 (constitutional) to 4 (unconstitutional), the Constitutional Court ruled that the portion of the "National Assembly building" of Article 11 Item 1 of the Assembly and Demonstration Act does not violate the Constitution for the following reasons:

1. Court Opinion

The provision at issue absolutely bans the outdoor assembly or demonstration near the National Assembly, which may directly renounce the members of the National Assembly, etc., impose psychological pressure through threats, or cause difficulty in the access to the National Assembly. Such prohibition ensures free access to the National Assembly building and the safety of its facilities and is considered as an adequate means to serve the legitimate legislative purpose. Meanwhile, given its particularity and importance, the constitutional jurisdiction exercised by the National Assembly requires special and sufficient protection. However, the general regulations prescribed by the Assembly and Demonstration Act or ex-post regulations under the Criminal Act alone cannot serve as the effective means to protect the competence of the National Assembly.

In addition, it is hardly the case that there is a less restrictive means other than the challenged provision, and having no exception is not considered a violation of the rule of the least restrictive means given the function and role of the National Assembly. Furthermore, the private interest abridged by the challenged provision is nothing but a spatial restriction in limited scope - restriction of holding assemblies near the National Assembly, whereas protecting the competence of the National Assembly is definitely important in terms of representative democracy. As the resulting decline in the effectiveness of assemblies and demonstrations and restriction on freedom concerned are therefore acceptable, the balance of interest is not found to be disrupted. For this reason, the contested provision is not in violation of the rule against excessive restriction and thus the freedom of assembly.

2. Dissenting Opinion of Four Justices

Sending a message or exercising political pressure by holding an assembly is necessary and worthwhile in itself in today's pluralistic democracy, and there is no constitutionally-justified need to prohibit any influence of political and collective expression on members of the National Assembly. Nevertheless, the challenged provision established a no-assembly zone without questioning the practical danger of assemblies or demonstrations near the National Assembly and the possibility of violence. This measure lacks the legitimacy of the legislative purpose or serves as an inadequate means to fulfill the legislative purpose. Meanwhile, insofar as the general regulations set forth in the Assembly and Demonstration Act and provisions restricting violence under the Criminal Act exists, the legislative purpose of protecting the function of the National Assembly can be served without difficulty even without the prior restriction of the exercise of the freedom of assembly itself. In this sense, designation of such a prohibited area is an excessive regulation of basic rights and thus violates the rule of the least restrictive means. In addition, the challenged provision is problematic in the sense that it provides no exception to ease the restriction on basic rights even in cases with small possibility of violation of legal interests. It is undoubted that the protection of the function of the National Assembly as a constitutional control body represents public interest of very particular importance, but the contested provision, by imposing full-fledged restriction even on the peaceful and justifiable assemblies, shows no effort for balancing the conflicting legal interests in consideration of specific circumstances. Hence, the balance of interests is hardly achieved. In consequence, the instant provision breaks the rule against excessive restriction by overly regulating the freedom of assembly and therefore is in violation of the Constitution.

3. Concurring to Dissenting Opinion of One Justice

Insofar as the official duties of the National Assemblymen are not obstructed, the people's freedom of speech should be allowed not only

in the vicinity of but also within the National Assembly.

4. Dismissal Opinion of One Justice

It is not that the challenged provision bans assemblies and demonstrations within the boundary of the National Assembly building. In the area within the boundary of the National Assembly building, the autonomy of the management authority over self-regulated order takes precedence over the intervention of public power. Therefore, the provision at issue does not apply to some of the complainants who held assembly within the boundary of the National Assembly, and their complaint challenging the constitutionality of the said provision is not justiciable since it involves a law not applicable to the underlying case.