15. Advance Report Duty for Outdoor Assembly Case

[578 KCCR 21-1 B, 2007Hun-Ba22, May 28, 2009]

In this case, the Constitutional Court held that the Assembly and Demonstration Act, Article 6 (1) is not against the rule of clarity and does not infringe on the freedom of assembly by not violating the rule against excessive restriction when it mandates advance report duty for outdoor assembly. Also, the Act, Article 19 (2) does not violate the rule of clarity by exercising legislative discretion on criminal punishment and therefore is not against the Constitution.

Background of the Case

The Constitution, Article 21 (2) guarantees the freedom of assembly by prescribing that 'licensing of assembly shall not be permitted'. The former Assembly and Demonstration Act (revised by Act No. 7123 on January 29, 2004 and before revised by Act No. 8424 on May 11, 2007. Hereinafter, referred to as "former ADA") defines that "outdoor assembly" is the assembly of people at place where there is no ceiling or walls (Item 1 of Article 2 (1), hereinafter as "definition provision"). Further, the former ADA mandates that the organizer of an outdoor assembly to report to the competent police department in the area between 720 hours and 48 hours prior to the scheduled assembly (the part regarding outdoor assembly of Article 6 (1), hereinafter as "report provision"). Those who hold an assembly without a report will be penalized with no more than two years of imprisonment or no more than two million won of fine (the former ADA, the part regarding Article 6 (1) in Article 19 (2), hereinafter as "penalty provision").

Petitioner was indicted for having an assembly without report. During the trial, petitioner filed a motion to request for the constitutional review of "report provision" and "penalty provision" claiming that these unconstitutional provisions infringe upon petitioner's freedom of assembly. After the motion being denied, petitioner filed the instant constitutional complaint with this Court.

The Provisions at Issue

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

Article 2 (Definitions)

For the purpose of this Act, the definitions of terms shall be as follows:

1. The term "outdoor assembly" means an assembly at a place where there is no ceiling or all sides are not closed;

Article 6 (Report, etc. on Outdoor Assembly and Demonstration)

(1) Any person who desires to hold an outdoor assembly or demonstration shall submit to the superintendent of the competent police station, forty-eight hours before the assembly or demonstration is held, a report stating the object, date, time (including the required hours) and place of the assembly or demonstration; the name, address of occupation of the promoter (including the representative in the case of an organization); the person responsible for liaison and the order keeper; the name, address, occupation and subject of speech of the speaker; the organizations expected to participate therein; the estimated number of participants, and the method of demonstration (including the course and route map): Provided, That if the assembly or demonstration is under the jurisdiction of two or more police stations, it shall be agency submitted to the commissioner of the competent local police agency, and if the demonstration is under the jurisdiction of two or more local police agencies, it shall be submitted to the commissioner of the competent local police agency having the jurisdiction over the place where it is held.

Article 19 (Penal Provisions)

(2) Any person who violates the provisions of Article 5 (1) or 6 (1), or who sponsors an assembly or demonstration against which a notice on prohibition has been issued under Article 8 above shall be punished by imprisonment for not more than two years, or a fine not exceeding two million won.

Summary of the Decision

The Constitutional Court held that "report provision" is not against the Constitution in a 7 (constitutional) to 1 (incompatible with the Constitution) vote (one Justice withdrew). The Court also held that "penalty provision" is not against the Constitution in a 6 (constitutional) to 2 (unconstitutional) vote (one Justice withdrew).

1. Review on Report Provision

A. Court Opinion

(1) Whether it is against the rule of clarity

While the former ADA defines that "outdoor assembly" is the assembly of people at place where there is no ceiling or walls, it does not define "assembly" itself. In general, assembly is the temporary gathering of people at a certain place with a specific agenda. The common purpose of the assembly is 'formation of inner tie'. A reasonable person with common legal awareness would infer the meaning of 'assembly' from the above mentioned explanation. For this reason, we find that the definition of 'assembly' is not unclear and "report provision" is not against the rule of clarity.

(2) Whether it violates the freedom of assembly

Generally, in its principle, the Assembly and Demonstration Act guarantees outdoor assembly and demonstration as far as it is properly reported. Therefore, advance report for outdoor assembly cannot be construed as advance permit which is prohibited under the Constitution, Article 21 (2). Advance report for outdoor assembly is enacted in order to ensure peaceful and effective assembly and to protect public safety with legitimate legislative purpose. Further, it intends to increase the communication and cooperation between the organizer of an assembly and relevant administrative agency through advance report and therefore is deemed to be a proper measure to implement these goals. A requirement for information and schedule of an assembly is not excessive to make the report impossible and therefore not against the principle of the least restrictive means.

Further, report provision satisfies the balancing test between the restricted private interest from inconvenience incurred by the organizer of an assembly and the protected public interest. For this reason, the report provision neither infringes upon the freedom of assembly nor violates the principle of no excessive restriction.

B. Incompatibility Opinion of One Justice

The instant "report provision" is against the Constitution, Article 37 (2). It mandates the duty of report only because an assembly is held outside without questioning whether it may threaten public safety, whether it is to be held in a public place, or whether it is a spontaneous or an emergency one. Nevertheless, I hold it is incompatible with the Constitution because it is the work of the legislature to repeal the unconstitutional portion of a law and to enact a new constitutional provision.

2. Review on Penalty Provision

A. Court Opinion

(1) Whether it violates the rule of clarity

As we found in the Article 6 (1), the definition of 'assembly' is not unclear and, therefore, "penalty provision" to regulate the organizer of an unreported assembly is not against the rule of clarity.

(2) Administrative discretion

Several issues arise on this subject: 1) whether the violation of an administrative rule should be treated as the violation of the administrative goal and the public interest which is serious enough to be regulated with administrative penalty; and 2) how the sentencing guideline should be set under what category, if the administrative penalty is assessed. Unreported outdoor assembly has the high probability to threaten the administrative goal and the public interest. Therefore, penalty provision does not infringe on the freedom of

assembly when it allows administrative penalty for the violation of law. Further, the penalty is not excessive as we find it is not out of limit of lawmaker's discretion and does not change report regulation to permit regulation.

2. Unconstitutional Opinion of Two Justices

The report obligation for assembly is a simple administrative measure for the purpose of cooperation. This type of cooperative duty is sufficiently regulated with administrative sanction such as fines. Nevertheless, penalty provision enforces this administrative duty with penalty of imprisonment and therefore causes chilling effects on the constitutional freedom of assembly. Penalty provision change report system to permit (license) system which is contrary to the original purpose of the report system. Further, the penalty provision treats the violator of this provision same as the organizers of violent assembly and demonstration which are prohibited under the Assembly and Demonstration Act. This treatment exceeds the limit of the state's punishment power in a government by the rule of law because it imposes the same penalty for the violation with that of a totally different violation in infringement of interest. For this reason, penalty provision imposes such excessive punishment for the violation and therefore it is against the Constitution.