‘집회의 자유’의 헌법적 보장- 헌법재판소 결정의 논증 비판 -

Abstract

The Constitutional Court of Korea, in spite of its brilliant performance for two decades, especially in liberty’s blessed domain, now confronts some criticism. Freedom of assembly, thanks to the Court’s broad interpretation of the Constitution, still reigns supreme in our representative democracy. However, the Court’s reasoning cannot be justified any more. The Court holds repeatedly that the direct-democratic “function” of freedom of assembly makes it difficult to limit the freedom itself. But according to liberal constitutional theory, such active interpretation of the Constitution has no ground. The Court also holds that the prohibition of licensing regulation (Article 21 Section II of the Korean Constitution) means a kind of “absolute guarantee” excluding the proportionality review of freedom of assembly. But some deeper research into the constitutional documents reveals that such absolute interpretation of the Constitution has no ground, either. Furthermore, such extreme strengthening of freedom of assembly doesn’t match with other decisions of the Court in similar cases.

The Constitutional Court of Korea, in spite of its brilliant performance for two decades, especially in liberty’s blessed domain, now confronts some criticism. Freedom of assembly, thanks to the Court’s broad interpretation of the Constitution, still reigns supreme in our representative democracy. However, the Court’s reasoning cannot be justified any more. The Court holds repeatedly that the direct-democratic “function” of freedom of assembly makes it difficult to limit the freedom itself. But according to liberal constitutional theory, such active interpretation of the Constitution has no ground. The Court also holds that the prohibition of licensing regulation (Article 21 Section II of the Korean Constitution) means a kind of “absolute guarantee” excluding the proportionality review of freedom of assembly. But some deeper research into the constitutional documents reveals that such absolute interpretation of the Constitution has no ground, either. Furthermore, such extreme strengthening of freedom of assembly doesn’t match with other decisions of the Court in similar cases.