(영문) 서울행정법원 2007.7.13.선고 2006구합24411 판결

1. On April 6, 2006, the defendant revoked the notification disposition prohibiting an outdoor assembly that was issued against the plaintiff on April 6, 2006.

2. The costs of lawsuit are assessed against the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

A. An organization formed by various organizations, such as a public official labor union, a professor labor union, a democratic labor union, and an attorney-at-law group for a democratic society, with the aim of securing the legitimacy of labor and basic rights to labor.

B. On April 4, 2006, around 13: 45, the Plaintiff reported an outdoor assembly to "50 to 100 persons participating in the senior police station", "the purpose of the opening", "the Ministry of Government Administration and Home Affairs', "the date and time of the opening", "0 to 15:00 "on April 12, 2006, : 00 to 15:00", and "delivery in front of the government general office (the receipt number of the senior police station, No. 1139; hereinafter referred to as the "instant assembly report").

C. On April 6, 2006, the Defendant rendered a notification disposition prohibiting outdoor assembly (hereinafter referred to as the “disposition of this case”) pursuant to Articles 12(2) and 8(1) of the former Assembly and Demonstration Act (amended by Act No. 8424, May 11, 2007; hereinafter referred to as the “Act”) on the grounds that the place of assembly reported by the Plaintiff falls under the major roads of major cities as prescribed by the Presidential Decree, and there is a concern for causing serious traffic inconvenience by hindering the traffic flow between the relevant road and surrounding roads.

D. The plaintiff is dissatisfied with the disposition of this case and filed an objection with the Commissioner of Seoul Local Police Agency around April 15, 2006:0, but the Seoul Local Police Agency dismissed the plaintiff's objection on April 11, 2006.

【Uncontentious facts, Gap evidence 1, Gap evidence 2, and 3 respectively, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The assembly reported by the Plaintiff is based on the freedom of assembly guaranteed by Article 21(1) of the Constitution, and the freedom of assembly in a democratic society is the substantial guarantee of freedom of expression, and representative democracy.

In light of the fact that supplementation, complaint, criticism, etc. is open to the public to resolve social conflicts, and if the assembly is inferred to a place where three people's attention is not given by the state power or an opinion expressed at a meeting, the protection of the freedom of assembly is de facto invalidated, and Article 21 (2) of the Constitution provides for the prohibition of prior permission of assembly, etc., the instant disposition should be revoked because it fails to meet the requirements or excessively prohibits an assembly in advance as seen below, thereby violating the principle of excessive prohibition.

(1) The place of the report of the instant assembly does not fall under the “major road,” which is a place subject to prohibition or restriction of assembly as stipulated in Article 12 of the Assembly and Demonstration Act, before the government general office building.

(2) Even if the "main road under the Assembly and Demonstration Act" in front of the government general government building falls under the "main road under the "A" under the "A" under Article 8 (1) [Attachment 1] of the Enforcement Decree of the Assembly and Demonstration Act, it includes most of the roads that can be held within the Seoul Metropolitan City, and thus substantially results in the prohibition of assemblies and demonstrations, and may prohibit or restrict assemblies and demonstrations only by law, and when delegated by law, it is not easy to set the specific scope of delegation. In addition, Article 12 of the Assembly and Demonstration Act delegated by the Presidential Decree to the major roads of major cities without setting the specific scope is in violation of Article 37 (2) of the Constitution, and is also in violation of the principle of no punishment without law.

(3) The instant disposition is not justifiable solely on the ground that the place of the instant assembly falls under a major road, but is justified only when the instant assembly causes serious inconvenience to traffic by causing interference with the traffic flow of the relevant place and its surrounding road, and even if it is necessary to prohibit or restrict an assembly or demonstration to ensure traffic flow, other means that restrict freedom of assembly or demonstration less than the freedom of assembly or demonstration by comprehensively taking into account the following factors: (a) restriction on the number of participants, restriction on the distance between the objects of the demonstration, restriction on the distance between the objects of the demonstration, time of demonstration, restriction on the required time, etc.; and (b) the instant disposition which prohibited the instant assembly itself is unlawful in light of the above principles of excessive prohibition, as it is against the discretionary authority.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Determination

(1) Whether the place of the instant assembly (in front of the government general office building, "delivery") falls under the major roads under the Assembly and Demonstration Act

(A) Article 12(1) of the Assembly and Demonstration Act provides that "the head of the competent police authority may prohibit an assembly or demonstration on the major roads of major cities prescribed by the Presidential Decree as necessary for traffic flow, or restrict it by attaching conditions for traffic order." Article 8(1) of the Enforcement Decree of the Assembly and Demonstration Act provides that "The roads of major cities 1. General roads of major cities / [Attachment 1] Article 8(1) of the Enforcement Decree of the Assembly and Demonstration Act provides that "I shall make an automatic efficiology south-Seoul Station - Tang-Tang-Tang-Tang-Tang-Tang-Yol-Seonam-ro to the south of the Han River branch of the Han River branch of the Seoul Special Metropolitan City at the time of ① the Seodaemun-gu Seoul Special Metropolitan City at the point of time 260 (In front of his second sentence)."

(B) Although Article 2 subparagraph 1 of the Road Traffic Act does not have a separate provision in the Assembly and Demonstration Act and the cities of such Act with regard to whether delivery is included in the main roads, Article 2 subparagraph 1 of the Road Traffic Act provides that "road as a road" means a road under the Road Act (a) on the road, a toll road under the Toll Road Act (b) on the road, and other places (c) where it is practically necessary to ensure safe and smooth flow of traffic of many and unspecified persons, or motor vehicles and horses, and "road" means a part of a road that is clearly indicated as a "road that is used for traffic of all motor vehicles by marking the boundaries with safety signs or similar structures (referring to a line that is separated from the roadway and sidewalk; hereinafter the same shall apply)."

(C) Therefore, in full view of the above provisions, it is reasonable to view that the main roads as stipulated in Article 12(1) of the Assembly and Demonstration Act include delivery, and therefore, the assembly site of this case constitutes “the main roads (three roads) in front of delivery to the Government General Assembly and Demonstration.”

(2) Whether Article 37(2) of the Constitution of the Republic of Korea and the principle of no punishment without prison labor are violated

(A) According to Article 8(1) [Attachment 1] of the Enforcement Decree of the Assembly and Demonstration Act and Article 12 of the Enforcement Decree of the Assembly and Demonstration Act, even if most of the roads that can be convened within the Seoul Metropolitan City are included in the "major roads", it is limited to the head of the competent police station, etc. to prohibit or restrict all assemblies and demonstrations on the major roads, not to prohibit or restrict any assembly and demonstration, but to restrict them by attaching the conditions for maintaining traffic order, while the freedom of assembly and demonstration is a fundamental right under the Constitution, but can be restricted by law for the maintenance of order or public welfare. In light of the above, it is difficult to see that Article 12 of the Assembly and Demonstration Act and Article 8(1) [Attachment 1] of the Enforcement Decree thereof results in a substantial prohibition of freedom of assembly under the Constitution.

(B) The freedom of assembly and demonstration can be restricted by law only when it is necessary for national security, maintenance of order, or public welfare as fundamental rights under the Constitution (Article 37(2) of the Constitution), but its essential contents cannot be infringed (Article 75 of the Constitution), but Article 12(1) of the Assembly and Demonstration Act is prohibited (Article 75 of the Constitution). Article 12(1) of the Assembly and Demonstration Act provides that "the basic matters within the scope prescribed by Presidential Decree by stipulating the term "major roads of major cities" shall be deemed to have already been specifically and clearly defined." Even if a major city uses a somewhat abstract phrase "major "road", the degree of the request for clarity and clarity of the delegation shall be mitigated in certain cases depending on the type and nature of the object of the provision, and thus, it cannot be deemed as violating the principle of prohibition of comprehensive delegation, and it is difficult to deem that prohibition or restriction of assembly and demonstration is an essential violation of the freedom of assembly and demonstration, which is an essential violation of the freedom of assembly and demonstration.

(C) Article 12 of the Assembly and Demonstration Act and Article 8(1) [Attachment 1] of the Enforcement Decree of the Assembly and Demonstration Act clearly stipulate major roads of major cities where assembly and demonstration are prohibited or restricted. Thus, it is difficult to view the above provision as contrary to the principle of no punishment without law under the Constitution.

(3) Whether there is a deviation or abuse of discretion, or violation of the principle of excessive prohibition.

(A) The representative public authority’s act that limits the freedom of assembly is prohibited from assembly, dissolution, and conditional permission as prescribed by the Assembly and Demonstration Act. Restriction on the freedom of assembly is another important legal interest.

The prohibition and dissolution of an assembly shall be justified only when it is essential to protect, and in principle, it may be permitted only when there is a clear direct threat to public peace and order. The prohibition and dissolution of an assembly shall be a final means that can only be considered after all other means that restrict freedom of assembly less, i.e., permitting an assembly by attaching conditions (see Constitutional Court en banc Order 200Hun-Ba67, 83 (Merger) Decided October 30, 2003).

(B) We examine this case. The venue of the assembly planned by the plaintiff is delivered in front of the government office building. The participants of the assembly are 50 to 100, and the assembly hours are 0 to 15:0 as seen earlier, and the assembly hours are 1 to 9, 10-1 and 2 respectively, and the assembly of this case is 1 to 10-2, and the assembly of this case is closed from 00 to 15:0,000 on the date of the assembly of this case. The assembly of this case was closed from 1 to 4,000 on the date of the assembly of this case. The assembly of this case was closed from 0:5,00 on the date of the assembly of this case 1 to 6:0,000 on the date of the assembly of this case. The assembly of this case was closed from 0:50,000 on the date of the assembly of this case from 0:5,000 on the date of the assembly of this case.

The following facts recognized by the above recognition, that is, the place of the assembly of this case is not a vehicle's front of the government-type joint office building, but a delivery on the left side of the government-type general office building, not a vehicle's front of the government-type joint office building

Therefore, it is difficult to view that the assembly does not interfere directly with the passage of those who want to enter the government general office building through the door of the government general office building, a relatively small number of participants in the assembly is less than 50 to 100, and that the time of the assembly is not very heavy from 12:0 to 15:0.00, and that the time of the assembly is not a time when the assembly is complicated, and that on the day of the assembly of this case, the President of the Ministry of Foreign Affairs and Trade was scheduled to attend the assembly of this case but is located adjacent to the government general office building, but the Ministry of Foreign Affairs and Trade is located adjacent to the government general office building of this case. In full view of all the circumstances revealed in the argument of this case, the assembly of this case may interfere with the degree of prohibiting the assembly itself, and as a matter of principle, the prohibition of assembly is limited to cases where there is a clear direct threat to public safety and order, and there is a possibility that the assembly of this case may interfere with the assembly of this case by imposing excessive restrictions on the freedom of assembly of communication.

(4) The Defendant asserts to the effect that the government general government building has a need for more strict application of the provisions of the Assembly and Demonstration Act as major state facilities such as the National Assembly assembly assembly hall and the court of each level as stipulated in Article 11 of the Assembly and Demonstration Act as the place where an outdoor assembly and demonstration are prohibited, and thus, the government-type general government building corresponds to major state facilities of the same level as the National Assembly assembly assembly hall and the court of each level. Even if the government-type government building falls under the major facilities of the same level as those of various levels, etc., the government-type government building should be based on the law in order to limit the freedom of assembly as fundamental rights guaranteed by the Constitution. As long as the place where an outdoor assembly and the assembly are held as prohibited under Article 11 of the Assembly and Demonstration

Thus, the defendant's disposition of this case is unlawful, and the plaintiff's claim seeking its revocation is reasonable, and it is decided as per Disposition by admitting it.

Judges

Judges of the presiding judge shall be appointed from among judges;

Judges Dok-Jon Line

Judges Jeong Jong-do

Site of separate sheet

Related Acts and subordinate statutes

Gu Assembly and Demonstration Act (amended by Act No. 8424 of May 11, 2007)

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

(1) A person who intends to hold an outdoor assembly or demonstration shall submit to the chief of the competent police station a report in which the purpose, date and time (including required hours), place, the address, occupation, and contact number of moderatorss (in cases of an organization, including its representative), the organization to participate and the number of persons to participate in the assembly or demonstration, and the method of demonstration (including career and map) are written from 720 hours to 48 hours before the outdoor assembly or demonstration is held: Provided, That in cases falling under the jurisdiction of two or more police stations, he/she shall submit a report to the chief of the competent police agency having jurisdiction over the place to which he/she holds the district police agency, and in cases falling under the jurisdiction of two or more local police agencies, he/she shall submit a report to the

(2) Upon receipt of the report under paragraph (1), the chief of the competent police station or the commissioner of the competent district police agency (hereinafter referred to as the "chief of the competent police agency") shall issue a receipt stating the date and time of receipt to the reporter immediately.

(3) In a case where the organizer does not hold an outdoor assembly or demonstration reported under paragraph (1), he shall notify the head of the competent police authority of such fact before the date of the assembly as stated in the report.

(4) In case of a gathering or demonstration for which a notice of prohibition has been given under Article 8 (2), the head of the competent police authority shall, upon receiving the notice of prohibition as provided in paragraph (3), immediately notify the promoter of such prohibition of the fact as provided in paragraph (3).

(5) The organizer in receipt of the notification as provided in paragraph (4) may hold the assembly or demonstration as reported initially: Provided, That in a case where he has set the time due to the notification of prohibition, etc., he may hold the assembly or demonstration after submitting a new report to the head of the competent police authority 24 hours prior to the assembly or demonstration.

Article 8 (Notice of Prohibition of or Restriction on Assembly and Demonstration)

(1) The head of the competent police authority who has received the report as provided in Article 6 (1) may, when he deems that the reported outdoor assembly or demonstration violates Article 5 (1), the main sentence of Article 10, or Article 11, when he fails to supplement the matters as provided in Article 7 (1), or when he deems that the assembly or demonstration is prohibited under Article 12, notify the organizer of the prohibition of the assembly or demonstration within forty-eight hours after the receipt of the new report: Provided, That in cases where the assembly or demonstration poses a direct danger to the public safety and order due to collective violence, intimidation, damage, fire prevention, etc., the prohibition of the assembly or demonstration may be conducted for the remaining period even after forty-eight hours have passed since the receipt of the report.

(2) If there are two or more reports on assemblies or demonstrations, the time and place of which conflict with each other, and if it is deemed that they conflict with or conflict with each other in terms of their purposes, the notice of prohibition of the assemblies or demonstrations received later may be given in accordance with paragraph (1).

(3) If the resident or manager of a case which falls under any of the following subparagraphs requests the protection of the facility or place, he may notify the prohibition or restriction of the assembly or demonstration. In this case, the provisions of paragraph (1) shall apply mutatis mutandis to the notification of prohibition of the assembly or demonstration:

1. A place which is recorded in the report under Article 6 (1) (hereafter referred to as "place of report" in this paragraph) is a residential area or an area of another person;

A similar place that causes serious damage to property or facilities due to an assembly or demonstration;

In a case where it is likely to cause a serious harm to the peace of activity;

2. The reported place is an area surrounding a school as defined in Article 2 of the Elementary and Secondary Education Act, due to an assembly or demonstration;

Where the right to learn is likely to be substantially infringed;

3. Assembly or demonstration in the vicinity of military installations under subparagraph 1 of Article 2 of the Protection of Military Installations Act;

(2) In the event that serious damage is likely to occur to the facility or military operations;

(4) The notice of prohibition and restriction of an assembly or demonstration shall be given in writing, specifying the reasons therefor, and shall be served on the organizer or person in charge of liaison.

Article 9 (Objection, etc. against Notice of Prohibition of Assembly and Demonstration)

(1) The organizer of an assembly or demonstration may raise an objection to the head of the immediate superior authority to the police officer concerned within ten days after he/she receives the notification of prohibition under Article 8.

(2) The head of police station in receipt of an objection under paragraph (1) shall issue a receipt indicating the date and time of receipt to the appellant immediately, and make a ruling within 24 hours after receipt of such written ruling. In case where he fails to send a written ruling within 24 hours after receipt of such ruling, the notification by the head of the competent police station of prohibition shall lose

(3) If the notification of prohibition as provided in paragraph (2) becomes illegal or unreasonable, or becomes null and void, the person who has raised the objection may hold the assembly or demonstration as reported initially: Provided, That if the time is set due to the notification of prohibition, etc., the person who has raised the objection may hold the assembly or demonstration after newly setting the date and time and reporting it to the head of the competent police authority 24 hours prior to the assembly or demonstration.

Article 11 (Places Prohibited from Outdoor Assembly or Demonstration) No person shall hold any outdoor assembly or demonstration in any place within one hundred meters from the boundary of any of the following office buildings or residences:

4. Diplomatic offices or residences of heads of diplomatic missions in the Republic of Korea: Provided, That Diplomatic units which fall under any of the following items:

The same shall not apply when it is deemed that there is no likelihood of infringing on the functions or security of the residences or residences of diplomatic missions.

of this chapter.

(a) Where it is not directed at the diplomatic offices or residences of heads of diplomatic missions;

Article 12 (Restriction on Traffic flow)

(1) If it is deemed necessary for a traffic flow with respect to any assembly or demonstration on the major roads of such major cities as prescribed by the Presidential Decree, the head of the competent police authority may prohibit it or restrict it by attaching the conditions for maintaining the order of traffic.

Article 19 (Penal Provisions)

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

Any person who violates the provisions of the main sentence of Article 10 or Article 11, and any person who violates the prohibition as prescribed in Article 12, shall be punished by the following:

1. The organizer shall be punished by imprisonment for not more than one year, or a fine not exceeding one million won;

2. The order keeper shall be punished by imprisonment for not more than six months or a fine not exceeding five hundred thousand won, detention, or a minor fine.

3. A person who has participated while knowing the fact thereof shall be punished by a fine not exceeding five hundred thousand won, penal detention, or minor fine.

Enforcement Decree of the Assembly and Demonstration Act

Article 8 (Assembly and Demonstration on Main Roads of Major Cities)

(1) The scope of major roads for major cities under Article 12 (1) of the Act shall be as prescribed in the attached Table 1.

[Attachment 1]

Major roads of major cities (related to Paragraph 1 of Article 8)

1. General roads;

A person shall be appointed.