Constitutional Court: "Advance Notification Requirement for Outdoor Assemblies under the Assembly and Demonstration Act is Constitutional"… Punishment Provisions 5 (Unconstitutional): 4 (Constitutional) Constitutional

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[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Constitutional Court has ruled that the provision in the amended Assembly and Demonstration Act (Assembly Act), which mandates prior police notification for outdoor assemblies and imposes criminal penalties for violations, does not violate the Constitution.

However, regarding the penalty provision, five justices expressed a dissenting opinion that regulating the failure to notify and holding an outdoor assembly with the same statutory penalty as an assembly prohibited under the Assembly Act is excessive and unconstitutional. Nevertheless, since the required quorum for an unconstitutional ruling (six justices) was not met, the provision was upheld as constitutional.

The Constitutional Court announced on the 2nd that it dismissed all claims in a constitutional complaint filed by Mr. A, a representative of a disabled persons' organization who received a non-prosecution disposition for violating the prior notification obligation for outdoor assemblies under the Assembly Act. Mr. A sought the cancellation of the prosecutor's non-prosecution disposition and a declaration of unconstitutionality regarding Article 6, Paragraph 1, which stipulates the prior notification obligation, and Article 22, Paragraph 2, which prescribes penalties.

Mr. A held an unnotified assembly on May 22, 2017, in front of the Gwangju City Council square, where approximately 600 people gathered using loudspeakers, placards, and pickets to deliver speeches and chants on topics such as "Introduction of a unified wage system for social welfare workers," followed by a rose performance. He was given a non-prosecution disposition on April 5, 2018, for holding an unnotified assembly.

On June 29, 2018, Mr. A filed a constitutional complaint arguing that Article 6, Paragraph 1 of the Assembly Act, which mandates prior notification for outdoor assemblies, violates Article 21, Paragraph 2 of the Constitution, which prohibits assembly permits, and the principle of proportionality, and that the penalty provision in Article 22, Paragraph 2 constitutes excessive punishment. He requested the unconstitutionality of both provisions and the cancellation of the prosecutor's non-prosecution disposition.

At the time of the incident, Article 6, Paragraph 1 of the Assembly Act stipulated that "any person intending to host an outdoor assembly or demonstration must submit a notification form to the head of the competent police station between 720 hours and 48 hours before the event, detailing the purpose, date, time, location, organizer (including the representative if an organization), contact person, order maintenance personnel's address, name, occupation, contact information, expected participating organizations and number of participants, and demonstration methods."

The Constitutional Court referred to its previous ruling upholding the constitutionality of Article 6, Paragraph 1 of the Assembly Act, stating, "The reasoning in the precedent remains valid, and there is no special change in circumstances or necessity to deviate from the precedent in this case; therefore, the precedent's view is maintained."

In the earlier decision, the Constitutional Court held that ▲ the concept of "assembly" is not ambiguous, ▲ the Assembly Act guarantees the right to hold outdoor assemblies in principle if certain notification procedures are followed, so the prior notification system does not violate the constitutional prohibition on prior permits under Article 21, Paragraph 2, and ▲ requiring notification at least 48 hours before the outdoor assembly is not excessive, thus not violating the constitutional prohibition on prior permits or the principle of proportionality.

Regarding the penalty provision, the Court also ruled constitutional, reasoning that ▲ unnotified outdoor assemblies pose a high risk to public peace and order, ▲ imposing administrative penalties does not infringe on the freedom of assembly, and ▲ the statutory penalties do not exceed legislative discretion or constitute excessive punishment.

However, among the nine Constitutional Court justices, four dissented on Article 6, Paragraph 1, which mandates prior notification for outdoor assemblies, and five dissented on Article 22, Paragraph 2, which prescribes penalties for violations.

Justices Lee Seok-tae, Kim Ki-young, and Lee Mi-sun opined, "If an outdoor assembly does not conflict with the legal interests of third parties or pose a foreseeable risk to public peace and order, imposing a prior notification obligation is not substantially necessary. Nevertheless, uniformly imposing this obligation and penalizing violations excessively restricts the freedom of assembly," expressing their dissent.

Justice Lee Seon-ae dissented, stating, "The Assembly Act does not provide for cases where an emergency assembly is held with less than 48 hours remaining before the event. Not allowing exceptions for emergency assemblies violates the principle of proportionality and infringes on the petitioner's freedom of assembly."

Meanwhile, these four justices, along with Justice Moon Hyung-bae, expressed dissent regarding the penalty provision, stating, "Ensuring compliance with the administrative procedural obligation to notify outdoor assemblies can be sufficiently enforced through administrative sanctions such as fines. Imposing criminal penalties for this shrinks the freedom of assembly."

They further pointed out, "Even if there is a risk of violent acts at outdoor assemblies, such acts can be sanctioned under criminal law. Considering this, the penalty provision, which imposes up to two years imprisonment or a fine of up to 2 million won solely for failure to notify, is excessively severe relative to the nature of the offense."

Moreover, they argued, "The penalty provision regulates organizers of unnotified outdoor assemblies with the same statutory penalties as organizers of assemblies prohibited under the Assembly Act, treating qualitatively different degrees of harm to legal interests equally, thus prescribing excessively harsh penalties," expressing their view of unconstitutionality.

This content was produced with the assistance of AI translation services.