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A Public Law Review on Issues in the Permit of Outdoor assembly in the night

  • Public Land Law Review
  • Abbr : KPLLR
  • 2011, 52(), pp.589-606
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Lee Young Woo 1 신평우 2

1목원대학교
2남서울대학교

Accredited

ABSTRACT

Our Constitutional Court already found that the above-mentioned Article 10 of the law on the assembly and demonstration is an exceptional clause under a special circumstance such as outdoor assembly and demonstration under the sunset and so it corresponds to the Constitution by a judgement of 91 Heonba 14. However, the judgement of 2008 Chogi 2418 decide to request the Constitution Court to rule as to whether it is constitutional or not by judging that the Article 10 of the law on the assembly and demonstration prescribes the permission system in the night in time and on outdoor assemblies in place because “permission” means that it prohibits human's free behaviors in advance and, on demand, discharge general prohibitions where they are qualified under the certain circumstance. Our Constitutional Court officially adopted in the judgment of 2008 Heanga 25 that the above-mentioned provision of the law on assembly and demonstration does not correspond to the Constitution because the number of five persons do not meet the quorum as to whether it is unconstitutional or not even though the majority of five members determined that it is simply unconstitutional such provision violates the prohibition of the permission system as indicated above. This means that the Article 10 of the law on the assembly and demonstration an excessive legislature violating the minimal possibility of infringement and equitable profit in law even though I cannot judge that it prescribes the permission system. The governance by the current Constitution over the freedom of assembly shall be a ground and limitation of legislature limiting basic rights. The freedom of assembly has duals functions of a factor of the revelation of an individual and a component of democratic and basic order in our society. The freedom of assembly has essence of a strong relationship with others as a factor of inevitable concept and also has a political function of the realization of democracy through the formation of political intentions by a few. This is a distinctive point that can be distinguished from legislative examples that reserve the possibility of broad limitation on the outdoor assembly in the Constitution in itself.

Citation status

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