Prohibition of Assembly in the Vicinity of Diplomatic Institutions

[15-2(B) KCCR 41, 2000Hun-Ba67, etc.,(consolidated), October 30, 2003]

Contents of the Decision

1. Dual constitutional functions of the freedom of assembly.

2. Guarantee of peaceful assemblies.

3. Content of the guarantee of the freedom of assembly.

4. Constitutional meaning of the place of assembly.

5. Grounds for distinction between outdoor assemblies and indoor

assemblies under the Act on Assembly and Demonstration.

6. Prohibition and dispersal of assembly as the final means.

7.Legislative purpose of the part ofSubdivision1 of Article 11 oftheAct on Assembly and Demonstration concerning foreign diplomaticinstitutionsexisting in the Korean territory (hereinafterreferredto as the provision at issue in this case) where Subdivision 1 ofArticle 11 of the Act prohibits outdoorassembliesin theentirety

within one-hundred meters from the facilities intended for diplomatic

institutions existing in the Korean territory.

8.Whether a special provision setting forth the places where assemblyis prohibited is an excessive regulation (negative).

9.Whether it is unequivocally necessary to prohibit assembly in theentirety with no permitted exception in particular circumstances (affirmative).

10. Violation of the principle of proportionality (affirmative).

Summary of the Decision

1. The freedom of assembly serves dual constitutional functionsas an element for consummation of personality of the individuals andas an element that constitutes democracy. Within our constitutionalorder where the dignity of human beings and the unhindered consum-

mation of personality are regarded as ultimate values, the freedom of assembly, like all other basic rights, is, first of all, a basic right that serves and contributes to the autonomous decisionmaking and the consummation of personality of the individuals. In addition, as the citizens may affect the formationof the public opinion by collec-

tively expressing their opinions and arguments through an assembly, the freedom of assembly, along with the freedom of expression, is one of the indispensable and fundamental elements in order for any democratic community to function.

2. What is protected under the freedom of assembly is limited to a 'peaceful' or 'nonviolent' assembly. The freedom of assembly is a means of spiritual debates and discussions in a democratic nation, and, as such, it constitutionally protects an expression of opinions through peaceful means, however, not an imposition of opinions byway of violence. The Constitution guarantees the freedom of assemblyas a basic right of the citizens thereby denying to perceive a peace-

ful assembly itself as a threat to or infringement upon public safetyand order, and the Constitution itself provides that certain inconve-

niences to the general public or threats to legally protected intereststhat inevitably

occur in the process of collective exercise of the freedomof assembly held by individuals must be accepted by the state and thethird party to the extent they harmoniously conform to such legal interests.

3.The freedom of assembly guarantees the right to autonomouslydetermine the time, place, manner, and purpose of the assembly. Someof the important activities specifically protected under the freedom ofassembly include preparation, organization, supervision, participation, and decision upon the time and place of the assembly. Therefore, the freedom of assembly not only prohibits the state from acting to interfere with an individual's participation in an assembly or forcing an individual to participate in an assembly, but also prohibits any and all measures taken by the state that affect the exercise of the freedom of assembly of an individual such as the interference withthe travel to and from the place of assembly or with the access to theplace of assembly by delaying it by way of inspecting and examiningthe participants of the assembly.

4.As the purpose and content of an assembly is inseparably andinternally related to the place of the assembly in general, the choice of the place of assembly in many occasions determines the success and the failure of the assembly. Because the place of the assembly has an important meaning for the very purpose and effect of theassembly, the freedom of assembly may be effectively guaranteed onlywhen every and any person can freely decide the 'location' of the planned assembly in principle. Therefore, unless justified in order to protect other legally protected interests, the freedom of assembly prohibits the separation of the place of the assembly from the object of the protest.

5.The Act on Assembly and Demonstration distinguishes outdoorassemblies from indoor assemblies on the ground that there is a greaterdanger in the case of outdoor assemblies of clashes against other legal interests due to the possibility of direct contact with theholders of other fundamental rights, therefore it is required to regulatein further detail the manner and the procedure of the exercise of the freedom of assembly in the case of outdoor assemblies. It is on one hand to have the freedom of assembly substantively exercisable and, on the other hand, to sufficiently protect the legal interests of a third party that are in conflict with the freedom of assembly.

6.Exemplary acts of the state that limit the freedom of assemblyinclude the prohibition of the assembly, the dispersal of the assembly,and the conditional permission of the assembly under the Act onAssembly and Demonstration. Any limits on the freedom of assemblymay be justified only when such limits are unequivocally necessaryin order to protect other important legally protected interests, and theprohibition or dispersal of the assembly, especially, may be permittedonly in a limited circumstance where there is a clear, present, and direct danger to the public safety and order as a matter of principle.The prohibition or dispersal of an assembly should be the final meansto be adopted that may be considered only upon exhaustion of all othermeans that restrict less of the freedom of assembly or exhaustion of all possibilities of permittingthe assembly by imposing certain con-

ditions.

7.Assemblies in the vicinity of diplomatic institutions have ahigher probability in general to cause conflicts with important legallyprotected interests compared with other places and thereby to inflictinfringement upon such other legal interests. Therefore, the provisionat issue in this case prohibits assemblies in the vicinity of diplomaticinstitutions in the entirety in order to effectively prevent in advancea situation of such serious conflicts between legally protected interests.The legal interests protected under the provision at issue in this caseinclude the guarantee of free entry and exit to and from the diplomaticinstitutions existing in the Korean territory and of the smooth perfor-

mance of activities and the bodily safety of the diplomats.

8.Should a particular location be specifically protected due to theimportance of the

performance of activities within such location andthe legislators determine that an effective protection of such importantinstitutions may be rendered by prohibiting, in principle, all assemblieson that location, such judgment of the legislators cannot be deemedto be manifestly wrong. The legislators are entitled to regulate certainspecial situations with higher probability of infringing upon other legallyprotected interests, such as an outdoor assembly at nighttime or an outdoor assembly at a particular location, in proportion to the degree of the impact of the assembly upon the public safety and order orof the danger of the conflicts between the legally protected interests.

9. When a general assumption that an assembly at a particular location causes a direct threat to the legal interests protected under the provision at issue in this case may be rebutted by a specificsituation, the legislators should provide for possible permission of the assembly as an exception to the general prohibition, from theperspective of the 'principle of the least restrictive means.' The preventive judgment of the legislators upon the presumptive dangeron which the provision at issue in this case is based may be rebuttedin the following specific circumstances.

First, in case of an assembly not against a diplomatic institutionbut targeting an object of protest that coincidentally exists in the locationwhere all assemblies are prohibited, there is less danger of conflicts between the legal interests premised in the provision at issue in thiscase. The provision at issue in this case poses a problem of over-inclusiveness in prohibiting all assemblies includingnot merely those assemblies to protest against a diplomatic institutionor a particularforeign nation located in the no-assembly zone but also those assemblies for other purposes within that zone.

Second, in case of assemblies of a relatively small size, there is generally less danger of intrusion upon the legal interest protected under the provision at issue in this case. For example, in the case of an intended assembly in front of an embassy of a foreign nation with a small number of participants by way of peaceful picketing without generating noise, unless there is a concern that it will be expanded by subsequent participation of the general public or a danger that it will turn to a violent demonstration, there can hardlybe any ground justifying prohibition of such a small peaceful assembly.

Third, when an assembly is intended to be and is actually held on a holiday when the diplomatic institution is officially closed for work, there is generally less danger of intrusion upon such legallyprotected interests as guaranteeing free access to and from the diplo-

matic institution or smooth performance of administration therein.

10. Therefore, although the legislators may prohibit, in principle,all assemblies on certain locations on the premise of the presumptionthat an 'assembly in the vicinity of a diplomatic institution has ageneral tendency of inflicting serious conflicts between legally protectedinterests,' there should be at the same time those provisions setting forth exceptions to such general prohibition in order to mitigate the possibility of excessive limitation upon the basic right that may result out of such generaland abstract provision of law. The provi-

sion at issue in this case nonetheless imposes a prohibition without permitting exceptions for those situations where there exists no specific danger premised under the provision at issue in this case.It is an excessive limitation beyond the scope of measures necessaryto achieve the legislative purpose. Therefore, the provision at issue in this case is unconstitutional as it excessively limits the freedomof assembly in violation of the principle of the least restrictive means.

Opinion of Justice Kim Young-il that the provision at issue in this case does not conform to the Constitution

I agree with the majority that the provision at issue in this case is of an

unconstitutional nature with respect to the cases of an'assembly that is not against a diplomatic institution but insteadtargeting other objects of protestcoincidentally existing in the no-

assembly zone' and an 'assembly of a relatively small size' as indi-

cated above, I respectfully disagree with the majority that we shouldhold the provision unconstitutional. Instead, I am of the opinion thatthe provision at issue in this case should be held nonconforming tothe Constitution on the above ground, so that the National Assembly,with its expansive legislative-formativepower, will remove the un-

constitutionality through specific statutory revisions and restore the constitutional order.

The general grounds for prohibition of assembly set forth in Article 5 of the Act on Assembly and Demonstration are insufficient to effectively achieve the legislative purposes of the provision atissue in this case of 'guaranteeing the function of diplomatic institution' and 'protecting safety of diplomatic facilities.' Therefore, a decision of nonconformity to the Constitution would be appropriate as such decision would permit tentative application of the provision at issue in this case until the statutory revision by the legislators, thereby preventing a vacuum or confusion in law that might be caused by nullification of the provision at issue in this case.

Opinion of Justice Kwon Seong that the provision

at issue in this case is constitutional

The question of how much locational distancing is necessary inorder to warrant nonviolence of an assembly should be ultimately de-

termined by the legislature under its legislative discretion consideringthe totality of the degree of respect for law and order, the frequencyof utilizing assemblies for competition among different political systems, the internal nature of public sentiment, and the atmosphere of the society. In light of this, the one-hundred-meter distancing set forth in the provision at issue in this case does not unequivocally exceed the degree that is necessary.

In light of the transformability and the unpredictability of an assembly that may be compared to a small piece of ash kindled to far-reaching fire, those circumstances where an assembly is of a small size at its initiation or that a facility which is the target of an assembly coincidentally stands in the vicinity of the objects an assembly against which is prohibited cannot be an element in deter-

mining the constitutionality of the provision at issue in this case. The provision at issue in this case is thus not unconstitutional.

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Parties

Complainants

1. National Alliance for Democracy & Reunification of Korea(2000Hun-Ba67)

Representative : Oh, Jong-ryul, Permanent Chair

Counsel of Record : Myungin Law Firm

Counselin charge :Yoon, Jong-hyun and five others

2.Committee Fighting forReinstatementofFormerEmployeesofSamsung

(2000Hun-Ba83)

Representative : Kim, Sung-hwan, Chair

Counsel of Record : Kwon, Doo-seob, Attorney

Original Case

1.Seoul Administrative Court, 2000Gu7642, Nullification of Notice of

Prohibition of Assembly (2000Hun-Ba67)

2.Seoul Administrative Court, 2000Gu15360, Nullification of Notice of

Prohibition of Assembly (2000Hun-Ba83)

Holding

Part of Subdivision 1 of Article 11 of the Act on Assembly and Demonstration that provides for the "diplomatic institutions of a foreign nation located in the Korean territory" is unconstitutional.

Reasoning

1.Overview of the Case and the Subject Matter of Review

A. Overview of the Case

(1) 2000Hun-Ba67 Case

(A) The complainant, the National Alliance for Democracy & Reunification of Korea, is a nationwide civil organization associatedon December 1, 1991 for the realization of democratic reform and thepeaceful reunification of Korea. The complainant intended to hold an outdoor assembly on February 23, 2000 under the title of 'Appeal for Truth-Finding Inquiry into the Civilian Massacre by the United States Army during the Korean War' at the empty lot within the Yulinmadang Park located at 76 Sejong-Ro, Jongno-Gu in Seoul.The complainant therefor submitted an outdoor assembly report to theSuperintendent of the Jongno Police Station, the competent authority,at approximately 9 o'clock in the morning on February 21, 2000, pur-

suant to Article 6 of the Act on Assembly and Demonstration.

On February 22, 2000, the Superintendent of the Jongno Police Station served a notice of prohibition of outdoor assembly on thecomplainant on the ground that the 'intended location for assembly waswithin the no outdoor assembly or demonstration zone under Article 11 of the Act on Assembly and Demonstration as it was locatedwithin ninety-seven(97) meters from the boundary of the United StatesEmbassy at 82 Sejong-Ro, Jongno-Gu, Seoul, and thirty-five(35) metersfrom the boundary of the Consulate Division of the Japanese Embassyat E-Ma Building, 146-1, Soosong-Dong, Jongno-Gu, Seoul.'

(B)The complainant thereupon filed an administrative proceedingwith the Seoul Administrative Court in March of 2000 seeking to nullify the notice of prohibition of the assembly (2000Gu7642), on the ground that Subdivision 1 of Article 11 of the Act on Assembly and Demonstration, which was the ground for the above measureprohibiting the intended assembly, was unconstitutional, and petitionedthe Seoul Administrative Court

to request a constitutional review ofthe same provision. Upon dismissal of the petition for request by the Seoul Administrative Court (Seoul Administrative Court 2000A643), the complainant filed a constitutional complaint on August 16, 2000withthe Constitutional Court pursuant to Article 68(2) of the ConstitutionalCourt Act, which is the case at bar.

(2) 2000Hun-Ba83 Case

(A) The complainant, the Committee Fighting for Reinstatement of Former Employees of Samsung, is an association organized to seek reinstatement of those individuals who were formerly employed at Samsung and then laid off. The complainant intended to hold an outdoor assembly for five consecutive days from April 24 to April 28, 2000 on the sidewalk in front of the former Korean Daily News Corp. building under the tile of 'Conference to Pulverize Nepotism by the Samsung Family and Achieve Reinstatement of Employment' and then to march to the Korea Chamber of Commerce and Industrylocated on 4-Ga Namdaemoon-Ro. The complainant therefor submittedan outdoor assembly report at approximately 2 o'clock in the afternoonon April 20, 2000 to the Superintendent of the Namdaemoon Police Station, the competent authority, pursuant to Article 6 of the Act on Assembly and Demonstration.

On April 20, 2000, at approximately 9:05 in the evening, the Superintendent of the Namdaemoon Police Station served a notice onthe complainant to the effect that the complainant should either cancelthe march or change the route of the march, on the ground that theroute as reported was in violation of Article 11 of the Act on Assem-

bly and Demonstration prohibiting demonstration including outdoorassemblies and marches within one-hundred meters from the bound-

ary of an embassy of a foreign nation, as the reported route for march included the sidewalks in front of the Samsung Headquarterbuilding that housed the Singaporean Embassy and the Samsung Life Insurance building that housed the El Salvadorian Embassy. Upon refusal of the complainant to conform to the above notice, the Superintendent of the Namdaemoon Police Station served a notice ofprohibition of outdoor assembly on the complainant on April 21, 2000, prohibiting the assembly in this case.

(B)The complainant thereupon filed an administrative proceedingwith the Seoul Administrative Court seeking to nullify the notice ofprohibition of the assembly (2000Gu15360), on the ground that Article11 of the Act, which was the ground for the above measure prohibitingthe intended assembly, was unconstitutional, and petitioned, during thependency of the above proceeding, the Seoul Administrative Court to request a constitutional review of the same provision. Upon dismissalof the petition for request by the Seoul Administrative Court (SeoulAdministrative Court 2000A497), the complainant filed a constitutionalcomplaint on November 1, 2000 with the Constitutional Court pursuantto Article 68(2) of the Constitutional Court Act, which is the case at bar.

B. Subject Matter of Review

As the pertinent part of Article 11 ofthe Act on Assembly and Demonstration(hereinafterreferred to as the "Assembly and Demon-

stration Act") in this case is limited to the "diplomatic institutions of a foreign nation located in the Korean territory" of Subdivision 1, the subject matter of review in this case is also limited to this partonly. Therefore, the subject matter of review in this case is whetherthe part of Subdivision 1 of Article 11 of the Assembly and Demon-

stration Act providing for the "diplomatic institutions of a foreignnation located in the Korean territory" violates the Constitution. The provision subject to constitutional review and other relevantprovisions are as follows:

Article 11 (Prohibited Place of Outdoor Assembly and Demonstra-

tion)

No person may hold any assembly or demonstration at any placewithin one hundred meters from the borderline of the following officebuildings or residences:

(1)The National Assemblybuilding, each level of courts, theConstitutional Court, diplomatic institutions of a foreign nation locatedin the Korean territory;

(2) The Presidential residence, the official residences of the Speaker of the National Assembly, the Chief Justice of the Supreme Court, and the President of the Constitutional Court; and

(3) The official residence of the Prime Minister, residences of the foreign diplomatic missions in Korea: Provided, That this shall not apply to a parade.

2. Opinions of the Complainants and the Related Parties

A. Summary of the Arguments of the Complainants

(2000Hun-Ba67 and 2000Hun-Ba83 cases)

(1) Article 11 of the Assembly and Demonstration Act defines the no outdoor assembly and demonstration zone in an overly broad manner and, further, within such zone, not merely the manner of particular assemblies or demonstrations is restricted, but any and all assembly and demonstration is prohibited altogether. The assemblyand demonstration in such zone should be regulated only to theextent that an assembly or demonstration in such zone considerably interferes with the administration of official business in such public institutions or deprives the general public of the right to make use of public property.

(2) The provision at issue in this case that prohibits assemblies and demonstrations in the vicinity of the diplomatic institutions of aforeign nation located in the Korean territory does not selectively pro-

hibit particular assemblies or demonstrations that touch diplomaticallysensitive issues out of concern over diplomatic conflicts and friction with that particular foreign nation. Instead, the provision at issuein this case preventively and entirely prohibits any and all assembliesand demonstrations in a location within one-hundred meters fromdiplomatic institutions regardless of the subject or the nature of indi-

vidual assemblies and demonstrations. This type of restriction onthe freedom of assembly is in violation of the principle of proportion-

ality or the principle against excessive restriction, which mandatesthat a restriction should not exceed what is reasonable and is permis-

sible as a necessary minimum.

(3) As most of the structures and residences enumerated in the subdivisions of Article 11 of the Assembly and Demonstration Actare located in the center of Seoul, the resultthereof is that no assem-

bly or demonstration can practically be held in the center of the city that is the most appropriate location to communicate the ideas andopinions of the person intending to hold an assembly or demonstration.

B. Summary of Reasons for Rejecting the Request for

Constitutional Review by Seoul Administrative Court

(2000Hun-Ba67 and 2000Hun-Ba83 cases)

(1) Article 11 of the Assembly and Demonstration Act imposes certain locational restrictions upon the freedom of assembly. Suchlocational restrictions are due to the facts that the National Assembly,the courts, the Constitutional Court and other listed

institutions performan especially significant function among various public institutions andthat maintaining order and tranquility and the safety from extrinsicand collective threats is a crucial element for the performance ofsuch significant functions. The diplomatic institutions of a foreign nation located in the Korean territory are included in the no outdoorassembly and demonstration zone as the normal functioning and safetythereof significantly affect the national interest from the aspect ofmaintenance and development of amicable diplomacy.

(2) The practical necessity for protecting diplomatic institutionsagainst threats upon their functioning and safety imposed by collectiveexpression of ideas through an outdoor assembly is not varied bythe direct relevance or lack thereof of the content of the assemblyto the particular foreign nation. Therefore, the uniform applicabilityof the restrictions and the uniform scope of such restrictions regardlessof the content, object, or manner of a particular outdoor assemblyunder the provision at issue in this case is not, without further, in violation of the constitutional principle of proportionality or principle against excessive restriction.

(3) The one-hundred meter distance under Article 11 of the As-

sembly and Demonstration Act is deemed to be out of an appropriatebalancing as to the scope between various conflicting basic rights. Notwithstanding the outcome that considerable part of the streets,plazas, and parks in the center of Seoul falls within the no demonstra-

tion zone due to the inclusion of the entire diplomatic institutionsunder the provision at issue in this case, this has not resulted in acomplete prohibition of any and all outdoor assembly in the center ofSeoul, nor does it limit the essential part of the freedom of assembly.

C. Opinion of the Superintendent of the Namdaemoon

Police Station (2000Hun-Ba83 case)

(1) Article 11 of the Assembly and Demonstration Act intends to protect such important legal interests as the national security andthe maximization of national interest through protection of the functionand the business of public institutions, maintenance of amicable rela-

tionships with foreign nations and protection of diplomatic institutionsand also as the protection of the right of other citizens to obtain service from public institutions. As such, with its justifiable andnecessary purpose, this provision is not excessively restrictive.

(2) In case of a demonstration held in the center of a city, ingeneral, even if it generates considerable degree of noise by utilizingloud speakers, no restriction is normally imposed in reality, and the targeted institutions or the general public accessing such institutionscan find out with ease the occurrence of the assembly and the contentof the argument advanced at the assembly through the gathering of the participants in the assembly and their advocation of the epithets even if an assembly is held over one-hundred meters away. There-

fore, such locational restriction does not limit the essential part of the freedom of assembly.

The provision at issue in this case shouldnot be held unconsti-

tutional on the mere ground that, while a march has a high tendencyof transforming into a violent incident, the complainant cannot proceedwith the intended march through the intended route or the march cannot proceed effectively due to the existence of many diplomatic institutions in the center of Seoul, where the smooth flow of traffic is difficult even in normal times due to a high volume of traffic of both pedestrians and vehicles.

3. Review

A.Constitutional meaning and function of the freedom

of assembly

Article 21(1) of the Constitution provides that "all citizens shallenjoy freedom of speech and the press, and freedom of assembly andassociation," thereby guaranteeing as the basic right of the citizens the freedom of expression, the freedom of assembly and the freedom of association, which is the basic right for the exchange of ideas and opinions with others. The Constitution guarantees the freedom of assembly as a fundamental right of the citizens thereby denying to perceive a peaceful assembly itself as a threat to or infringement upon public safety and order, and the Constitution itself providesthat certain inconveniences to the general public or threats to legallyprotected interests that inevitably occur in the process of collective exercise of the freedom of assembly held by individuals must beaccepted by the state and the third party to the extent they harmoni-

ously conform to such legal interests.

The freedom of association serves dual constitutional functionsas an element for consummation of personality of the individuals andas an element that constitutes democracy.

(1)Within our constitutional order which places the highest valuein the dignity of human being and the consummation of unhindered personality, the freedom of assembly, like all other basic rights, isthe basic right that contributes more than anything else to the auton-

omous decisionmaking and consummation of personality of an individual. Desiring to contact other individuals, to exchange each other's ideasand thoughts, and to collectively express and consummate personalityis the very basic urge of every human being as a social animal.The freedom of assembly is the fundamental right that guaranteesthe freedom for coexistence with others in order to express and con-

summate personality, that is, the freedom for collective expression and consummation of personality through an exchange of opinionswith others. At the same time, the freedom of assembly is thefundamental right that protects individuals against forced isolation from others and social community by the state power. Thus, anassembly with others for the collective expression and consummationof personality in and by itself belongs to the zone of personal freedomthat should be valued and protected by the fundamental right. The freedom of assembly, togetherwith the freedom of association, guar-

antees the freedom to gather with others.

(2)The freedom of assembly, together with the freedom of asso-

ciation, is one of the indispensable and essential elements for the functioning of a democratic community, as the citizens affect theformation of public opinions by collectively expressing their opinionsand arguments through an assembly. The freedom of assembly isthe freedom to collectively express opinions and, as such, provides an opportunity in a democratic nation to participate in the formation of political opinions and decisions. Under our Constitution that hasadopted representative democracy instead of direct democracy, the general public is left with the unique possibility of affecting theformation of political opinions and decisionsin the form of demonstra-

tion by exercising the freedom of assembly, other than exercising the right to vote and participating in the political party or socialorganizations.

In addition, the freedom of assembly functions to integrate thosedissatisfied with politics and to contribute to political stability byallowing public expression of dissatisfaction with and criticism againstsocial and political situations. The freedom of assembly, especially, serves an increasingly significant function as the window through

which minority opinions are channeled to state affairs by offering anappropriate means to advocate the rights, interests and arguments of the minority groups that normally cannot access mass media in themodern society, for the freedom of assembly functions as an effectivemeans to collectively express political disagreement to the holder of power in national politics. In this sense, the freedom of assembly isan important fundamental right for the protection of minorities. Whenthere is a guarantee of possibility that minority groups may affect the formation of political opinions and decisions of the community, the decisionmaking of the community by way of majoritarian rules will be given added legitimacy and may be accepted by the minority overwhelmed by the majority.The guarantee of the freedom of as-

sembly by the Constitution is the manifestation of the constitutionalresolution toward a pluralistic 'open society' where tolerance and variousideas coexist.

B.Content of the guarantee of the freedom of assembly

(1)The freedom of assembly guarantees the right to autonomouslydetermine the time, place, manner, and the purpose of the assembly.Essential conduct specifically protected under the freedom of assemblyincludes the preparation, organization, and supervision of the assembly, the participation in the assembly, and the decision of time and place of the assembly. However, it does not protect participation in anassembly for the purpose of interfering with the assembly. Theorganizer of the assembly may freely determine the subject matter, purpose, time, and place of the assembly, and the participant in the assembly may freely choose the type and degree of participation and his or her clothes when participating in the assembly.

Although the Constitution does not expressly so state, what is protected under the freedom of assembly is limited to 'peaceful' or 'nonviolent' assemblies. The freedom of assembly is a means ofspiritual and ideological debate and discussion in a democratic nationand, as such, it protects expression of opinions through peaceful means, yet does not constitutionally protect coercion of expression by way of violence.

(2) The freedom of assembly is, in its immediate meaning, a basic right providing for a defense against the intrusion of officialstate power and, as such, is the basic right prohibiting the state fromacting to interfere with individuals' participation in an assembly or to force individuals to participate in the assemblies. Therefore, the freedom of assembly not only prohibits the state from forcefully in-

terfering with the participation in the assembly, but also prohibits anyand all measures affecting the exercise of the freedom of assembly by way of, for example, interfering with returning home from the place of assembly, interfering with access to the place of assemblyby delaying it through inquisition and examination of the participants, or watching individuals' participation in assemblies under guard andcollecting information concerning such individuals thereby weakeningthe potential participants' will to participate in the assembly in fear of prejudice and eventually giving up participation therein.

(3)The place of assembly has a special symbolic meaning. Often,a particular place is chosen for an assembly due to its special relationto the purpose of the assembly. In general, expression of opinion by way of demonstration is conducted in a place where the subject matter or target opposed at the demonstration exists (for example, a detested and protested facility such as a nuclear power plant or agarbage incinerator) or where an incident that has triggered the dem-

onstration occurred (for example,a building hosting the stateinsti-

tution that made the decision at issue). For example, a demonstrationprotesting against a legislative bill that discriminates against women may not expect to have any significant impact should it be held ina commercial or residential area, yet, it may have a maximum impact should it be held in front of the National Assembly building. That is, as the

purpose and content of an assembly and the place of anassembly generally have an intimate internal interrelationship, the choiceof the place of assembly in many occasions determines the success and the failure of an assembly.

The importance of the place where an assembly is held in thefreedom of assembly is also manifestly indicated in that the protectionof the freedom of assembly as a basic right will be practicallymeaningless should an assembly be expelled by state authority to a place where it cannot draw any attention from the public or whereno one will listen to the opinions expressed at the assembly. As theplace of assembly has an important meaning concerning the verypurpose and impact of the assembly, the freedom of assembly can be effectively guaranteed only when everyone may freely choose 'in which place' to hold the intended assembly as a matter of principle. Therefore, the freedom of assembly prohibits separation of the place of assembly from the object of the protest, unless it is justified in order to protect other legally protected interests.

C. Essential regulations under the Assembly and

Demonstration Act

(1)The Assembly and Demonstration Act distinguishes an outdoorassembly from an indoor assembly and provides that Articles 6 through12-2 of the Act are applicable only to the outdoor assembly and dem-

onstration.

The Assembly and Demonstration Act distinguishes an outdoorassembly from an indoor assembly on the ground that an outdoor as-

sembly poses a greater danger of the clash between legally protectedinterests compared with an indoor assembly due to the possible directcontact with the holders of other fundamental rights. In case of an outdoor assembly, the method and procedures concerning exercise of the freedom of assembly should be regulated in more detail, for itmay cause inconvenience to the general public such as hindered flowof traffic as it necessarily requires the use of a public place such as a public street, and it may also endanger maintenance of order as it accompanies collective actions of many individuals. This is to have the freedom of assembly substantively exercisable on one hand and, on the other, to sufficiently protect the legal interests of third party individuals that may be in conflict with the freedom of assembly.

(2)The Assembly and Demonstration Act, under Article 6, imposesa notice obligation on the organizer ofan outdoor assembly by sub-

mitting a report of the intended outdoor assembly to the superintendentof the competent police authority no later than forty-eight hours priorto the intended outdoor assembly.

Pursuant to Article 8(1) of the Assembly and Demonstration Actthat provides for the grounds forprohibition of assemblies, the super-

intendent of the competent police authority that has received the reportmay serve a notice prohibiting the reported outdoor assembly within forty-eight hours from the reception of the notice when he or shedetermines that the reported outdoor assembly is the one "that clearlyand directly threatens public safety and order through collective battery, threatening, destruction or arson" (Subdivision 2 of Article 5(1)), thatis held during the no outdoor assembly time zone (before sunrise, after sunset) (main provision of Article 10), that is held in the no outdoor assembly zone (Article 11), where the organizer has failed to supplement or amend the reported items (Article 7(1)), or that should be prohibited in order for the flow of the traffic (Article 12). In addition, the Act provides that an assembly for the purpose of opposing the assembly that has already been reported in the same location (Article 8(2)) or an assembly in a residential area against which an injunction is requested by a resident to protect against the possibility of damage to the property (Article 8(3)) may also be prohibited.

Pursuant to Article 18(1) of the Assembly and Demonstration Act, which provides for the grounds for dispersal of assemblies, the superintendent of the competent police authority may order dispersalof an assembly where there is a ground that absolutely prohibits anyassembly (Article 5(1)), where an outdoor assembly is held during the nighttime (Article 10) or in a no outdoor assembly zone (Article 11), where there has been no report thereof pursuant to the law (Article 6), or where a prohibition notice has been served as a prohibited assembly (Articles 8 and 12(1)).

(3)The most conspicuous examples of the state action that limitsthe freedom of assembly are the prohibition of the assembly, the dispersal of the assembly, and the conditional permission of the assembly, provided in the Assembly and Demonstration Act. Limits on the freedom of assembly may be justified only when such limitsare unequivocally necessary in order to protect other important legallyprotected interests, and the prohibition and the dispersal of theassembly may especially be permitted, in principle, only when thereexists a clear and present danger directly threatening the publicsafety and order. The prohibition and the dispersal of the assembly should be the final means that may be considered upon completely exhausting all other possible means restricting less of the freedomof assembly, that is, all possible conditional permission for the assembly(for example, limiting the number of participants, distancing fromthe target of the demonstration, restriction on manner, time, andduration of demonstration, etc.). In this sense, Subdivision 2 of Article 5(1) of the Assembly and Demonstration Act, which providesfor the grounds for absolute prohibition of the assembly, strictly limitsthe grounds for prohibition of assembly to the one "that clearly and directly threatens public safety and order through collective battery, threatening, destruction or arson."

D.Constitutionalityof the provisionatissue in this case

(1) The provision at issue in this case as a provision

limiting the freedom of assembly

(A)The provision at issue in this case entirely prohibits, withoutexception, any and all outdoor assembly and demonstration withinone-hundred meters from the boundary of the structures hosting a foreign diplomatic institution in the Korean territory (hereinafter re-

ferred to as the "location in the vicinity of diplomatic institutions"). In case an outdoor assembly is held at the location in the vicinity of diplomatic institutions, notwithstanding the prohibition under the provision at issue in this case, the superintendent of the competent police authority may order dispersal of such assembly (Subdivision 1 of Article 18(1) of the Assembly and Demonstration Act). Thosewho hold an assembly in the no outdoor assembly zone are punishableby imprisonment for one year or less or a fine of one-million Wonor less, according to the status as an organizer, a supervisor, or asimple participant (Article 20).

As the provision at issue in this case geographically limits freeexercise of the freedom of assembly by establishing a no-assembly zone, the provision at issue in this case is a provision restricting thefreedom of assembly.

(B)The provision at issue in this case does not prohibit an as-

sembly on particular occasions. Instead, it uniformly prohibits any andall assembly on a specific location on the sole ground that such'assembly is held on that specific location,' regardless of any particularcircumstance that poses danger in a specific case. That is, thelegislators have concluded, upon an irrebuttable presumption that anassembly in the vicinity of diplomatic institutions is generally againstthe performance of business within such diplomatic institutions, thatthe diplomatic institutions can be effectively protected only by acomplete prohibition of assembly in such areas.

(2) Legislative purpose of the provision at issue in this case

As an assembly in the vicinity of diplomatic institutions, comparedwith other locations, may generally result in a conflict with importantlegal interests thereby leading to a highly probable intrusion upon such legal interests, the provision at issue in this case entirely prohibitsany and all assembly in the vicinity of diplomatic institutions in order to effectively prevent in advance such a highly probable clash betweenlegally protected interests. The legally protected interests presupposedby the provision at issue in this case include the protection of freeentry to and exit from diplomatic institutions stationed in the Koreanterritory, efficient business performance, and the bodily safety of the diplomats.

On the other hand, it may be questioned whether the legislative purpose of the provision at issue in this case includes prevention of potential damage to the 'amicable relationship with foreign nations' that may be caused by direct face-to-face opposition by a foreign diplomatic institution against an assembly held in its vicinity wherenegative opinions towards such particular foreign nation are expressed.However, in a free democratic nation where the freedom of expressionand of assembly is guaranteed as a basic right of its citizens, theact by the citizens to participate in an assembly in order to collectivelyexpress opinions constitutes a normal affair in the life of a democraticcitizenry and the value generally accepted. Therefore, exercise of sucha basic right in a peaceful manner by a portion of the citizens in the vicinity of diplomatic institutions does not mean damage to the'amicable relationship with foreign nations.' That is, a legal interestof 'good faith relationship with foreign nations' may not serve as a reasonable ground for prohibiting exercise of a basic right of the citizenry in the vicinity of diplomatic institutions.

Therefore, the legislative purpose of the provision at issue in this case does not include the maintenance of amicable relationshipwith foreign nations by prohibiting assemblies in the vicinity of a diplomatic institution where negative opinions toward such particular nation are expressed. The legislative purpose of the provision at issue in this case in its essential part deems to lie in the 'guarantee of the function of the diplomatic institutions' and the 'protection of the safety of the official diplomatic facilities.'

(3) Violation of the principle of proportionality

Even if the provision at issue in this case limits the freedom of assembly under the legitimate purpose of protecting important legalinterests, any restrictions upon the freedom of assembly should strictlyfollow the principle of proportionality. Therefore, even when the leg-

islative purpose of the provision is legitimate, restrictions upon the fundamental right may be permitted only to the extent necessary for the achievement of the legislative purpose.

(A) violation of the principle of the least restrictive means

We consider the issue of whether the 'complete prohibition of assembly on specific locations' that the provision at issue in this case has adopted is the means that restricts the least of the basic right of the citizenry among all valid means that may be considered to achieve the legislative purpose.

1) whether or not a special provision establishing no assemblyzone constitutes an excessive restriction

In light of the spirit of the Constitution that guarantees the freedomof assembly as a basic right of the people and the regulatory structureof the Assembly and Demonstration Act that guarantees under suchconstitutional spirit all assemblies, as a matter of

principle, as long asa certain reporting procedure is followed, it would be more desirableto permit assemblies, in principle, even at the location where conflictsamong legal interests are especially anticipated.

However, on the other hand, the judgment of the legislators maynot be deemed patently wrong when the legislators have concluded that certain locations should be particularly protected due to the im-

portance of the performance of their functions and an effective pro-

tection of such important institutions may be provided by prohibitingassemblies, in principle, at such locations. The legislators may regulatein proportion to the effect of an assembly upon public safety and orderand to the degree of danger of conflicts among legal interests, on suchspecial circumstances where there is a high probability of intrusion upon other legally protected interests such as an outdoor assembly at nighttime or an outdoor assembly at a particular location (6-1 KCCR 281, 302, 91Hun-Ba14, April 28, 1994).

Therefore, with respect to the protection of major constitutional institutions or diplomatic institutions, the decision of the legislatorsto enact special provisions in order to protect particular locations doesnot in itself excessively restrict the basic right of the citizens.

2) whether or not a complete prohibition of assembly with nopermitted exception thereto is absolutely necessary

The legislators in regulating the freedom of assembly may enact special provisions in order to protect particular locations. However, when prohibiting assemblies on particular locations, the legislators should follow the principle of proportionality.

a)The legislators should clearly set forth the purview of theno assembly zone to the minimum extent that is absolutely necessaryfor the protection of the functioning of the protected institutions. Inthe case of the provision at issue in this case, the legislators delineatedthe purview of the no assembly zone as the radius of one-hundredmeters from the boundary of the officialfacilities of diplomatic insti-

tutions. Such demarcation seems to be permissible as a necessary minimum for the effective protection of the legal interests concernedand is not extremely expansive considering legislation of various foreignnations.

From the perspective of a large-scale protest that is typical ofthe situation where the interference with the functioning of diplomaticinstitutions or the threat to the bodily safety of the diplomats is concerned, securing distance from the official facilities of diplomaticinstitutions concerned by one-hundred meters deems to be appropriatein light of the danger of conflicts of legal interests on general circum-

stances, neither does it sever the nexus between the location of de-

monstration and the purpose of it. Therefore, the geographical purviewof the no assembly zone established by the provision at issue inthis case does not by and in itself excessively restrict the freedom of assembly.

b)However, should the general presumption that an assemblyonparticular locations causes a direct threat to the legal interestsprotected under the provision at issue in this case be rebuttable onparticular circumstances, the legislators must provide for the possiblepermission of an assembly as an exception to the general prohibition from the perspective of the 'principle of the least restrictive means.' The anticipatory conclusion by the legislators with respect to the abstract and general danger presupposed by the provision at issue in this case may be rebutted in the following particular cases:

First, in case of an assembly not against a diplomatic institutionbut targeting an object of protest that coincidentally exists in thelocation where all assemblies are prohibited, there is less danger of conflicts between the legal interests premised in the provision atissue in this case. The provision at issue in this case poses aproblem of over-inclusiveness in prohibiting all assemblies includingnot merely those assemblies to

protest against a diplomatic institutionor a particular foreign nation located in the no-assembly zone but alsothose assemblies for other purposes within that zone. Especially in such cases of large cities as Seoul where major facilities are located close to each other, a single protected structure that coincidentallystands in a particular area practically prohibits as a consequence anyand all assembly altogether targeting many other potential objects of demonstration within the radius of one-hundred meters from it.

Second, in case of assemblies of a relatively small size, there isgenerally less danger of intrusion upon the legal interest protected underthe provision at issue in this case. For example, in the case of an intended assembly in front of an embassy of a foreign nationwith a small number of participants by way of peaceful picketing without generating noise, unless there is a concern that it will be expanded by subsequent participation of the general public or adanger that it will turn to a violent demonstration, there can hardly be any ground justifying prohibition of such peaceful assembly of a small size.

Third, when an assembly is intended to be and is actually held on a holiday when the diplomatic institution is officially closed forwork, there is generally less danger of intrusion upon such legallyprotected interests as guaranteeing free access to and from thediplomatic institution or smooth performance of administration therein.

c)Therefore, although the legislators may prohibit, in principle,all assemblies on certain locations on the premise of the presumptionthatan 'assembly in the vicinity of a diplomatic institution has a generaltendency of inflicting serious conflicts between legally protected interests,' there should be at the same time those provisions setting forth exceptions to such general prohibition in order to mitigate thepossibility of excessive limitation upon the basic right that may resultout of such general and abstract provision of law. The provision atissue in this case nonetheless imposes a prohibition without permittingexceptions for those situations where there exists no specific dangerpremised under the provision at issue in this case. It is an excessivelimitation beyond the scope of measures necessary to achieve the leg-

islative purpose. Therefore, the provision at issue in this case is unconstitutional as it excessively limits the freedom of assembly in violation of the principle of the least restrictive means.

When the legislators enact a provision exceptionally permittingassemblies from the perspective of the principle of proportionality, the legislators should provide for the general guidance with respectto the conditions concerning 'in which cases an assembly in thevicinity of diplomatic institutions may be permitted,' thereby removingroom for the arbitrary exercise of discretion by the administrative authority in granting permission.

d) There may be a voice of concern that the 'assembly in thevicinity of diplomatic institutions should be entirely prohibited also in the future,' in light of our culture of demonstration that indicates theunfortunate tendency that large-scale demonstrations held by varioussocial andinterest groupstoday often take on violence and unlawful-

ness. However, such a misdirected culture of demonstration in our society should not determine the exercise of the basic right of the citizens to peaceably exercise their right to assembly. What shouldbe prohibited and expelled from our society is a violent and unlawfuldemonstration and not legitimate exercise of the basic right by indi-

viduals. Therefore, the culture of violent demonstration in our societyshould not unjustly intrude upon the basic right of the citizens inexercising their basic right by peaceful means within the scope that such exercise harmonizes with the public safety and order. What is anticipated and assumed by the Constitution and the Assembly and Demonstration Act is a peaceful and lawful assembly, and it is theobligation of the Constitutional Court to protect the basic right of theindividuals in exercising their freedom of assembly peaceably andlawfully.

(B) violation of the balance between legally protected interests

In addition, the provision at issue in this case has lost appropriatebalance between the freedom of assembly and other legally protected interests. The provision at issue in this case has provided a unilat-

erally preferred position for the legal interestsprotected by the pro-

vision at issue in this case, without any effort to strike balance amongconflicting legal interests by considering specific circumstances in each case of assembly, by entirely prohibiting any and all assemblyon particular locations regardless of the threat to the legally protectedinterests in each case. The provision at issue in this case therebyignores the important meaning of the freedom of assembly in ademocratic nation and especially the importance of the freedom ofassembly in supplementing the freedom of expression in a represen-

tative democracy. Therefore, also from this perspective, the provisionat issue in this case is a provision that excessively restricts the freedom of assembly in violation of the principle of proportionality.

4. Conclusion

Therefore, it is so ordered that the provision at issue in this case is in violation of the Constitution. This decision is based onthe unanimous opinion of the participating Justices, with the exceptionof the opinion of nonconformity to the Constitution of Justice Kim Young-il and the dissenting opinion of Justice Kwon Seong.

5. Opinion of Justice Kim Young-il that the provision at

issue in this case does not conform to the Constitution

I am also of the opinion that the provision at issue in this caseis of the unconstitutional nature similar to that indicated in themajority opinion. However, I respectfully disagree with the majorityopinion on the following grounds, which are explained in the followingparagraphs : the provision at issue in this case is only partially uncon-

stitutional as indicated below,and the part thereofthat is unconstitu-

tional may not bynaturebeseparated from the part that is constitu-

tional, therefore it is appropriate to render a nonconformity decision indicating such unconstitutionality and ordering tentative applicationthereof and to have the National Assembly with expansive law makingpower restore the constitutional order that is constitutional through specific statutory revisions removing the unconstitutionality.

The majority opinion deems that "an assembly in the vicinity of diplomatic institutions, compared with other locations, may generally result in a conflict with important legal interests thereby leading toa highly probable intrusion upon such legal interests, and the provisionat issue in this case entirely prohibits any and all assembly in thevicinity of diplomatic institutions in order to effectively prevent inadvance such highly probableclash between legally protected inter-

ests," and has concluded that the legallyprotected interests presup-

posed by the provision at issue in this case are ultimately the 'guarantee of the functioning of diplomatic institutions' and the'protection of safety of official facilities of diplomatic institutions.'The majority opinion, premised upon such conclusions, first reasons the general constitutionality of the provision at issue in this case in principle as follows. That is, it presupposes that "the judgment ofthe legislators may not be deemed patently wrong when the legislatorshave concluded that certain locations should be particularly protecteddue to the importance of the performance of their functions and aneffective protection of such important institutions may be provided byprohibiting

assemblies, in principle, at such locations. Therefore, thedecision of the legislators to enact special provisions to protect par-

ticular locations with respect to the protection of diplomatic institutionsdoes not, in itself, excessively restricts the fundamental right of the citizens." The majority continues that the "legislators' demarcationof the purview of the no assembly zone as the radius of one-hundredmeters from the boundary ofthe official facilities of diplomatic insti-

tutions seems to be permissible as a necessary minimum for effectiveprotection of the legal interestsconcerned and is not extremely ex-

pansive considering legislation of various foreign nations. From theperspective of a large-scale protest that is typical of the situationwhere the interference with the functioning of diplomatic institutionsor the threat to the bodily safety of the diplomats is concerned,securing distance from the official facilities of diplomatic institutions concerned by one-hundred meters deems to be appropriate in lightof the danger of conflicts of legal interests on general circumstances,neither does it sever the nexus between the location of demonstrationand the purpose of it. Therefore, the geographical purview of the no assembly zone established by the provision at issue in this casedoes not by and in itself excessively restrict the freedom of assembly."

However, the majority opinion then indicates the unconstitutionalityof the provision at issue in this case as follows. Pursuant to themajority opinion, the reasons for establishing a no assembly zone inaddition to the abstract dangerous circumstances that serve as the ground for general prohibition of or restriction upon the assemblypresupposed by the provision at issue in this case, to rephrase, thepublic interests to be protected by such special prohibition, lie in the'guarantee of the functioning of the diplomatic institutions and theprotection of safety of the official facilities of diplomatic institutions'through the guarantee of free access to the diplomatic institutions stationed in the Korean territory, guarantee of efficient performanceof business and services, and protection of bodily safety of the dip-

lomats. Then, the majority opinion reasons that, although it is manifestthat there exists no danger of intrusion upon the above public interestsin the following three cases of① an assembly not targeting a diplo-

matic institution but the object of protest, which is coincidentally located in the no assembly zone, ② a small-scale assembly where the conflict against the legally protected interest presupposed by the provision at issue in this case is not a problem, or ③ an assemblyheld on a holiday when the diplomatic institutions are closed for officialbusiness and services, the provision at issue in this case uniformly prohibits any and all assembly thereby excessively restricting the freedom of assembly, therefore the provision at issue in this case is unconstitutional.

First, I discuss the case of an 'assembly held on a holidaywhen the diplomatic institutions are closed for official business and services,' the third of those cases the majority has presupposed as where the anticipatory conclusion of the legislators presumed in the provision at issue in this case may be rebutted.

Even accepting as is the conclusion of the majority that the legalinterests protected under the provision at issue in this case are the 'guarantee of the functioning of the diplomatic institutions and the protection of the safety of the official facilities of diplomatic institu-

tions,' there is no ground for specifically ruling out the case of aholiday. This is due to the fact that the diplomatic institutions or thediplomats represent their respective nations as the existence symbolizingsuch foreign nations, therefore their performance concerning diplomacyis regarded as the act of their respective nations although they arestationed and perform their functions in the Korean territory. This isthe same as the fact that we perform diplomatic activities by stationingdiplomatic institutions and dispatching diplomats in various foreign nations and our diplomatic activities should also be likewise protected.As the diplomatic institutions or the diplomats represent their

respec-

tive nations and are stationed in part of the Korean territory as the representatives of their respective nations, there is no ground for specifically ruling out the case of business holidays for lack of clear danger against the legal interests presupposed by the provision at issue in this case in light of the special nature of the diplomatic institutions as such.

Then, as this case may not be the circumstance where the antici-

patory presumption of the legislators with respect to the abstractdanger presupposed by the provision at issue in this case is rebutted,the reasoning for unconstitutionality in the majority opinion concerningthis is not persuasive.

Next, the reasoning for unconstitutionality in the majority opinionis more persuasive concerning an assembly not targeting diplomatic institutions but the object of protest, which is coincidentally located in the no assembly zone (the case of ① above) and a small-scaleassembly (the case of ② above). However, with respect to the former,it is questionable whether there would be no damage in all such casesto the 'guarantee of the functioning of diplomatic institutions and theprotection of the safety of the official facilities of diplomatic institu-

tions' that is presupposed as the legislative purpose of the provision at issue in this case, regardless of the scale or the manner of anassembly or a demonstration. Withrespect to the latter, it is question-

able whether the scale of an assembly to be defined as a small-scaleassembly could be clearly determined, even more so as an assembly or a demonstration expects additional participants. Furthermore, it would not be easy to determine, in reality, which standard should be applied in order to decide whether there is a possibility of 'danger that an assembly or a demonstration might expand to a large-scaledemonstration or turn into a violent demonstration by the participationof the general public.'

Then, after all, there is merely partial unconstitutionality in theprovision at issue in this case as indicated above and also as admittedin the majority opinion. Even when there is unconstitutionality, this isthe case where it is difficult for the Constitutional Court to establishan unequivocally clear standard as the line between the part that is constitutional and the part that is unconstitutional is vague. The majority opinion that nonetheless declares in its holding that the provision at issue in this case is unconstitutionalin totodifferentlyfrom the stated rationale in its reasoning has deviated from theprinciple of the presumption of constitutionality and can hardly conformto the principles of the separation of powers and the respect for the legislative power.

Therefore, although the part of the provision at issue in this casewith respect to the 'assembly not targeting diplomatic institutions but the object of protest, which is coincidentally located with the noassembly zone' and the 'small-scale assembly' is unconstitutional asdiscussed above, as the boundary between the part that is constitu-

tionaland the part that is unconstitutional is vague, it is appropriateto render a nonconformity decision and to have the National Assemblywith its expansive law making power restore the constitutional orderthat conforms to the Constitution through specific statutory revisionsto remove the unconstitutionality.

In addition, the provision at issue in this case merely provides for the prohibition of conduct at a particular location as it provides for the location that falls within the radius of one-hundred meters from the boundary of the diplomatic institutions of foreign nations stationedin the Korean territoryas one of the locations where outdoor assem-

blies and demonstrations are prohibited, and the underlying litigation in this case is a proceeding where cancellation of the administrativemeasure of the notice prohibiting assembly taken by the Superintendentof Jongno Police Station is sought.Although Article 20 of the As-

sembly and Demonstration Act separately provides for possible criminalpunishment in case of the violation of the provision at issue in thiscase, the provision at issue in this case

is not a provision of criminalpunishment upon which anonconformity decision is generally inappro-

priate, in light of the seriousness of the intrusion upon the fundamentalright andthe rapid recovery of such intrusion, therefore a noncon-

formity decision can possibly be rendered with respect to the provisionat issue in this case. Furthermore, the public interest that may be achieved by maintaining the effect of the provision at issue in this case is relatively greater, and the general grounds for prohibition of assembly set forth in Article 5 of the Assembly and DemonstrationAct of the 'assembly or demonstration that poses a clear and directthreat to the public safety and order through collective battery, threatening, destruction, or arson' may not effectively achieve thelegislative purposes of the provision at issue in this case of the 'guarantee of the functioning of diplomatic institutions' and the 'protection of the safety of the official facilities of diplomaticinstitutions,' as the provision of general grounds for prohibition of assemblies of Article 5 of the Assembly and Demonstration Act is intended to maintain domestic order. Therefore, a nonconformitydecision is appropriate as such decision allows tentative application ofthe provision at issue in this case until the statutory revision thereofby the legislators in order to prevent a legal vacuum or confusion which will be caused by nullification of the provision at issue inthis case and to maintain harmonious constitutional order.

For the foregoing reasons, I respectfully disagree with the major-

ity opinion and am of the opinion that a nonconformity decision should

be rendered.

6. Opinion of Justice Kwon Seong that the provision at

issue in this case is constitutional

I am of the opinion that the provision at issue in this case isnot unconstitutional. The grounds therefor are stated in the followingparagraphs.

A. Three principles of assembly

(1) Principle of peaceful assembly

It is needless to say that the assemblies protected under theConstitution (the term "assembly" is hereinafter used to mean outdoorassemblies only, and to include demonstrations) are limited to peacefuland nonviolent assemblies. This can be referred to as the principle of peaceful assembly or the principle of nonviolent assembly.

(2) Principle of locational distancing of assembly

The assembly is an act that has its counterpart, and inevitably causes tension between the actor and the counterpart (including all of those who the assembly indicates as the other party in conveying expressed opinions, those who oppose the assembly, and those who intend to regulate the assembly). Here, peace can be maintained only by geographical separation between the two parties concerned,either individuals or associations (hereinafter the associations concernedas parties are referred to as associations), that are under such tenserelationship. That is, peacedemands locational distancing. Any as-

sembly thus has a higher tendency of remaining as a peaceful assemblyonly when the principle of locational distancing is observed. This also explains why indoor assemblies are given more protection thanoutdoor assemblies. That is, indoor assemblies are by definition those assemblies where the principle of locational distancing is observed.

The unity of many persons, display of might and vigor, strategicoverstatement of

opinions, inflammation of mass psychology and the possibility of incidental and successive exercise of influence upon nonspecific multiple targets that may be seen in an assembly is inand by itself an element of unrest toward peace and, further, generatesan additional element of unrest by triggering psychological mechanismsof defense and protest in the counterpart. Such elements of unrest may be mitigated or removed by locational separation or distancing.

Therefore, the principle of nonviolent assembly demands, as amatter of course, the principle of locational distancing of the assembly.

(3) Principle of mutual respect

Pluralism is an essential element of democracy, and pluralism canbe maintained only when multiple groups with different opinions orinterests respect each other. Peaceful coexistence of pluralistic groupsunder tension is possible only when the principle of mutual respect is observed.

This applies to assembly as well. A peaceful and nonviolentassembly becomes possible only when the principle of mutual respectis observed throughout the assembly between two groups that are under tension.

The principle of mutual respect also requires the principle of locational distancing. When two groups which should respect eachother but are under tension contact each other or lie physically close,such contact or close proximity heightens tension leading to increasedunrest, and mutual respect might turn into vehement hostility.

Therefore, the degree of observance of the principle of mutual respect affects the extent of locational distancing, and the extent oflocational distancing in turn influences the principle of mutual respect. To rephrase, where the principle of mutual respect is well observed,the required extent of locational distancing decreases correspondinglyand, to the contrary, where the principle of mutual respect does notoperate properly, the required extent of locational distancing increasescorrespondingly.

B. Legislative discretion of the National Assembly

The question of how much locational distancing is required in order to guarantee peaceful assembly is ultimately a question to bedetermined by the National Assembly within its legislative discretionconsidering the totality of the degree of respect toward law and order, the frequency of utilization of assembly for the purpose ofcompetition between different systems, the essential nature of masspsychology, and the atmosphereof society. In exercising such dis-

cretion, the cumulative experience and judgment concerning variouscircumstantial elements described above of the executive branch,which is directly in charge of the actual business of protecting andregulating the assembly, should also be considered as a factor. Shouldthe legislative discretion of the National Assembly be clearly wrong to the extent that it intrudes upon the essence of the basic right, its constitutionality would, as a matter of course, be the subject matterfor constitutional review by the Constitutional Court. However, judg-

ment of the Constitutional Court, which is normally isolated from the scene of "boiling water," is subjected to yet additional caution.

C. The instant case

Locational distancing of one-hundred meters under the provision at issue in this case is not clearly digressive of the extent requiredfor the observance of the principles of peaceful assembly, of locationaldistancing, and of mutual respect, in light of the

degree of respect toward law and order, degree of inflammation of mass psychology, andfrequency of utilization of assemblies for the competition between and among different systems, indicated in current days. Therefore, I am of the opinion that the provision at issue in this case is not unconstitutional.

On the other hand, there are certain perceivable problems of ① the inflexibility of the provision at issue in this case that does not permit even small-scale assemblies, and ②the unreasonable conse-

quence that a location where assemblies are normally permitted mayincidentally turn into a no assembly zone should it be closely locatedto a no assembly zone.

However, first, such circumstances as the small scale of anassembly at its initial stage or the geographical location that thetarget of an assembly coincidentally stands close to other facilitiesagainst which assemblies are prohibited, in light of the transformabilityor uncertainty of the assembly that may be compared to a small piece of ash turning to a far-reaching fire, cannot be the elements in determining the constitutionality of the provision at issue in this case. Second, the specific scope of assembly that is prohibited by the application of the provision at issue in this case is a questionthat can be, and should be, appropriately determined through reasonableinterpretation by the court, therefore this should not lead to the con-

clusion of unconstitutionality on the premise that the provision at issue in this case is fixed or unchangeable in its scope. Therefore, I am respectfully of the opinion that the provision at issue in this case is not unconstitutional.

Justices Yun Young-chul (Presiding Justice), Han Dae-hyun, Ha Kyung-chull, Kim Young-il, Kwon Seong, Kim Hyo-jong, Kim Kyung-il, Song In-jun, and Choo Sun-hoe (Assigned Justice)

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Aftermath of the Case1)

The National Assembly, based on the holding of the ConstitutionalCourt, revised the provision at issue in this case effective January 29, 2004, to permit assemblies as an exception in cases where an assembly is not targeting diplomatic institutions, where an assembly does not tend to turn to a large-scale assembly, or where an assembly is held on a holiday on which diplomatic institutions are closed for official business and services and if found that it does not threaten functioning or safety of such diplomatic institutions.