3. Ban on Outdoor Assembly and Demonstration Adjacent to Courthouses Case

[17-2 KCCR 360, 2004Hun-Ka17, November 24, 2005]

In this case, the Court upheld the contested relevant provisions of the Assembly and Demonstration Act, which absolutely ban outdoor assemblies and demonstrations within one hundred meters of the border surrounding courthouses.

Background of the Case

The Assembly and Demonstration Act absolutely bans outdoor assemblies and demonstrations within 100 meters of the border surrounding courthouses (hereinafter, referred to as "Instant Provision"). petitioners had been ordered, by a summary decision, to pay a fine of 300,000 won each for having participated in an unregistered assembly in a no-assembly zone near a courthouse. Requesting petitioners requested a full trial, and during the full trial, they filed a motion for request for constitutional review of the Instant Provisions and the presiding Jinju Branch of the Changwon District Court granted the motion and requested this Court for constitutional review.

Summary of Decision

The Constitutional Court upheld the Instant Provisions in a five to four opinion for the following reasons:

1. Majority Opinion of Five Justices

A.The legislative purpose of the Instant Provision is protection of the proper functioning and peace of courts to the extent that peace of courts it contributes to the proper functioning of the courts. The function of a

court can be properly maintained only when the fairness and independence of judicial functions is secured. The fairness and independence of judicial functions is a constitutional mandate. The core legislative purpose of the Instant Provision, protection of the proper functioning of courts, is strongly mandated by the Constitution, and is, therefore, found legitimate. Also, protection of such functioning of courts is special in that it is required by the Constitution, and therefore, an absolute ban, without exception, on all assemblies and demonstrations adjacent courts is an indispensable means to prevent materialization of abstract risks, and therefore satisfies the rule of minimum restriction.

B.Restriction caused by the Instant Provision only reduces the effects of assemblies and demonstrations and does not materially limit the freedom thereof. Courts of our country usually have independent buildings at a distance from their neighboring buildings, and therefore due to their general structure, the scope of limitation on assemblies and demonstrations is relatively narrow. On the other hand, the public interest pursued by the Instant Provision- protection of judicial functions - is greater than the disadvantage caused by banning outdoor assembly in the vicinity of courthouse, and therefore, the Instant Provision satisfy the requirement of balance between legal interests.

2. Concurring Opinion of One Justice

The Instant Provision's creation of a no-assembly zone near courthouses does not depart significantly from the level necessary for satisfying the three principles of assembly: the principle of peaceful assembly, the principle of assemblies at a distance, and the principle of mutual respect. The no-assembly rule does not intend to ban all assemblies without exception. It is intended to allow assemblies not affecting the proper functioning of courts, which its legislative purpose attempts to protect. Therefore, courts through reasonable interpretation taking into account the legislative purpose and the three principles of assembly can set its detailed scope constitutionally.

3. Dissenting Opinion of Four Justices

The Instant Provisions' creation of no-assembly zone near courthouses

itself is reasonable in that it is based on an assumption that assemblies and demonstrations taking place near courthouses can threaten a legal interest ordinarily requiring protection. However, such generalized assumption may not apply to an actual assembly or demonstration, in which case there is no danger against the protected legal interest, and therefore there is no need to ban that assembly or demonstration. The Instant Provision does not make an exception for such situation and ban such assembly and demonstration as well. Such ban, even considering the uniqueness of a courthouse, is a restriction exceeding the extent necessary for accomplishing the legislative purpose, and thereby fails to satisfy the requirement of minimum restriction. The Instant Provision restricts the freedom of assembly and demonstration excessively in view of the public interest sought, and therefore lack the requisite balance among legal interests. The Instant Provision violates the principle of proportionality and therefore violate the Constitution.