Nighttime Outdoor Assembly Ban Case

[156 KCCG 1633, 2008Hun-Ka25, September 24, 2009]

In this case, the Constitutional Court held that the Article 10 of the Assembly and Demonstration Act as well as its penalty provision, the Article 23 Item 1 infringe the freedom of assembly when the Article 10 bans outdoor assembly from sunset to dawn with the exception of selective permission by the head of competent police department. The decision, having five votes for unconstitutionality and two votes for incompatibility with the Constitution, was rendered as an incompatibility decision.

Background of the Case

Movant at the requesting court was charged with the violation of "Assembly and Demonstration Act" by allegedly organizing an outdoor assembly from 19:35 to 21:47 on May 9th, 2008. During the trial, the said movant filed a motion to request for the constitutional review of 'Assembly and Demonstration Act, Article 10 and 23 Item 1' claiming that the instant law allows the advance permit for assembly which is prohibited by the Constitution. The trial court granted the motion and requested this constitutional review of the aforementioned provisions on October 13, 2008. The text of the provisions at issue is as follows:

The Provisions at Issue

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

Article 10 (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 ……, 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

In a 7 (five votes for unconstitutionality and two votes for incompatibility) to 2 vote, Constitutional Court held the provisions at issue incompatible with the Constitution.

1. Justice Lee Kang-kook, Justice Lee Kong-hyun, Justice Cho Dae-hyen, Justice Kim Jong-dae and Justice Song Doo-hwan's Majority Opinion: Unconstitutionality

Under the Constitution, Article 21 Section 2, the permit system for assembly is prohibited. This principle is the constitutional value-consensus and the decision of the people who possess the power to amend the Constitution. Under this provision, the Constitution sets a clear limitation in restricting basic rights and, therefore, this provision should be the standard of review with a higher priority than the Constitution, Article 37 Section 2 which is the provision regarding statutory reservation.

The 'permit' prohibited by the Article 21 Section 2 of the Constitution means a permit system under which an administrative authority may permit assemblies in certain cases by reviewing the contents, the time and the place of reported assemblies. In other words, it is the system under which all unpermitted assemblies are banned.

The Assembly and Demonstration Act (hereinafter, "ADA"), Article 10 prescribes that, the head of a competent police department, as an administrative authority, may ban an outdoor assembly scheduled either before sunrise or after sunset (hereinafter, "nighttime") as a general

rule with an exception that the authority may decide not to ban it based on the review of the contents of an assembly in advance. Evidently, the Article 10 prescribes a permit system for nighttime outdoor assembly and we cannot read it otherwise. Therefore, it is against the Article 21 Section 2 of the Constitution and the entire Article 23 Item 1 of "ADA" based on it is against the Constitution as well.

2. Justice Cho Dae-hyen and Justice Song Doo-hwan's Supplementary Concurring Opinion

If we hold the provisions at issue against the Article 21 Section 2 of the Constitution, we can solve the constitutional issue by letting lawmakers to delete the exception provision of the Article 10 of "ADA" because, in that way, the administrative authority loses the power to permit nighttime outdoor assemblies in a selective basis. Yet, we still face the issue of substantial infringement of the freedom of assembly without reasonable basis as we allow the general and complete ban of nighttime outdoor assembly under the Article 10 of "ADA". For this reason, we should hold the entire part of the Article 10 against the Article 37 Section 2 of the Constitution.

3. Justice Min Hyeong-ki and Justice Mok Young-joon's Opinion: Incompatibility with the Constitution

(A) When lawmakers enact a law to restrict the freedom of assembly, such action of lawmakers does not fall into the advance permit system which is prohibited under the Article 21 Section 2 of the Constitution. In general, lawmakers may restrict outdoor assembly in terms of time, place and manner. The main text of the Article 10 of "ADA" regulates lawmakers' restriction on time of outdoor assembly while the proviso relieves the severity of the restriction. The contested provision is the time restriction of outdoor assembly and thus not against the principle of "the prohibition of advance permit" promulgated by the Constitution, Article 21 Section 2.

(B) "ADA" Article 10 was enacted to restrict nighttime outdoor

assembly in principle after considering the nature and the distinctiveness of nighttime outdoor assembly from the perspective of the difficulty in maintaining the public order. The legitimacy of legislative goal and the appropriateness of means are thereby approved. Yet, the contested provision bans outdoor assembly in a wide range of timeframe and, in result, makes the freedom of assembly nominal by virtually blocking daytime workers' and students' access to assembly. Further, in a city oriented and industrialized modern society, the nature and the distinctiveness of nighttime in terms of difficulty in maintaining a public order is focused on late night. Since "ADA" prescribes various measures to protect citizen's life and privacy and public order, the legislative goal could be achieved without difficulty even if the prohibited timeframe is not such wide as in the provisions at issue. Nevertheless, the contested provision imposes an excessive restriction to achieve the goal and delegates the power of permission, which was enacted to relieve the excessive restriction as an exception, to an administrative authority. However, such a delegation cannot be found to be an appropriate measure to relieve excessive restriction and, for this reason, the Article 10 of "ADA" violates the principle of the prohibition of excessive restriction and infringes on the freedom of assembly. This finding also applies to the Article 23 Item 1 of "ADA" which is based on the Article 10 of "ADA".

(C) The unconstitutionality of the Article 10 of "ADA" is not found in the restriction of nighttime outdoor assembly itself. In the provisions at issue, the constitutionality and the unconstitutionality are mixed and, therefore, it should be left to lawmakers to decide what nighttime frame shall be restricted to guarantee the freedom of assembly in the least restrictive manner. For this reason, we hold the provisions at issue incompatible with the Constitution and yet maintain its validity through June 30, 2010 until which time lawmakers may revise it. If lawmakers do not revise it until the above said date, it will become invalid as of July 1, 2010.

4. Justice Kim Hee-ok and Justice Lee Dong-heub's Dissenting Opinion: Constitutionality

(A) The content-neural restriction on time and place in the freedom of assembly does not fall into the "permit" system prohibited by the Constitution, Article 21 Section 2 as far as it is enforced with a concrete and clear standard. Whether the Article 10 of "ADA" constitutes the assembly permit prohibited by the Constitution, Article 21 Section 2 should be decided after reviewing the standard of the restriction: whether the standard, as a content-neutral one, is concrete and clear. In restricting the freedom of assembly, the provisions at issue adopt a time standard which is content-neutral, concrete and clear. For this reason, the contested provision does not constitute the "permit" prohibited by the Constitution, Article 21 Section 2.

(B) The Article 10 of "ADA", with a legitimate legislative goal, was enacted to guarantee the freedom of assembly and demonstration and, concurrently, to maintain the public order in a harmonious manner. Since, nighttime outdoor assembly has a high probability to violate the public order by the virtue of 'nighttime' and 'outdoor assembly'. Therefore, the contested provision, which bans nighttime outdoor assembly as a general rule, is found to be an appropriate means to achieve the legislative goal. It is practically difficult to restrict nighttime outdoor assembly by subdividing the restricted time and places more into details. Essential nighttime outdoor assemblies are selectively permitted under the contested provision. Further, alternative channels for communication and public opinion are available. For these reasons, we hold that the Article 10 of "ADA" does not infringe on the freedom of assembly and not violate the Constitution. It is same with the "ADA", Article 23 Item 1 which is based on the contested provision.

5. Type of Decision and the Relation to the Precedent

Five Justices held the provisions at issue unconstitutional while two Justices incompatible with the Constitution. This number satisfies the required number of votes (6) to hold a statute unconstitutional under the Constitutional Court Act, Article 23 Section 2 Item 1. Subsequently, this Court holds the contested provisions unconstitutional and yet maintain their validities through June 30, 2010 until which

time lawmakers may revise the unconstitutional portion of the law because the provisions at isue have the mixed portions of constitutionality and unconstitutionality. If lawmakers do not revise this provisions until the above said date, the provisions will become invalid as of July 1, 2010.

Previously, in 91 Hun-Ba14 (April 28, 1994), the Constitutional Court held the former Article 10 of "ADA (wholly revised to Act No. 4095 on March 29, 1989)" constitutional. The decision of 91 Hun-Ba14 shall be overruled as to the conflicted portion with this decision.

6. Justice Cho Dae-hyen's Non-Applicability Order Opinion

The Article 10 and 23 Item 1 of "ADA" is a criminal statute. If this Court allows the validity of the contested provisions in which the unconstitutional portion is embedded until revision, this Court's decision is deemed to be deviated from the spirit of constitutional review of statute and further against the Constitutional Court Act, 47 Section 2. The application of the provisions at issue should be suspended until revision.