"Amendment to the Assembly and Demonstration Act Banning Night Gatherings May Have Partial Unconstitutionality"

Attorney Kim Jun-woo KBS Radio Interview
"Assemblies and Demonstrations Are Different... Assembly Ban May Be Unconstitutional"

Regarding the ruling party and government’s plan to amend the "Assembly and Demonstration Act (Jipsibeop)" to ban nighttime assemblies and demonstrations from "midnight to 6 a.m.," lawyer Kim Jun-woo evaluated that "there is some potential for unconstitutionality."

In an interview with KBS Radio's "Choi Kyung-young's Strong Current Affairs" on the 23rd, lawyer Kim said about the proposed amendment to Jipsibeop promoted by the ruling party and government, "According to the Constitutional Court’s intent, the demonstration part is allowed, but the assembly part has potential unconstitutionality."

Lawyer Kim explained that there is a difference between "assembly" and "demonstration." He said, "Article 21 of the Constitution states that 'permission for assembly and association shall not be recognized.' This means that 'assembly' is not subject to a permit system. Then, is 'demonstration' subject to a permit system? It could be," adding, "An assembly is a gathering, and a demonstration can be simply thought of as a march."

On the morning of the 17th, during the rush hour, citizens are passing by members of the Construction Union of the Korean Confederation of Trade Unions (KCTU) who are camping out at Cheonggye Plaza in Jung-gu, Seoul, following a general strike resolution rally held the previous night.
[Image source=Yonhap News]

In 2009, the Constitutional Court ruled the "outdoor assembly" part of Article 10 of Jipsibeop, which stated "outdoor assemblies or demonstrations cannot be held before sunrise or after sunset," as unconstitutional. Furthermore, in 2014, the Court judged that banning demonstrations from "after sunset until midnight" was unconstitutional. In other words, demonstrations should not be prohibited until midnight, and only bans after midnight are constitutional.

However, no follow-up legislation was enacted after the Constitutional Court’s unconstitutionality ruling, and Article 10 of Jipsibeop automatically lost its effect. Therefore, currently, there is no legal basis for banning nighttime assemblies and demonstrations. In response, the ruling party and government recently decided to push for legislation banning assemblies and demonstrations during late-night hours, triggered by the 1-night 2-day overnight assembly of the Korean Confederation of Trade Unions Construction Union.

Regarding this, lawyer Kim analyzed, "According to the Constitutional Court’s intent, banning demonstrations may be possible, but banning assemblies has potential unconstitutionality." However, he explained that even for assemblies, "if an assembly is held right in the middle of a fully residential apartment complex, permission may not be granted when reported, and a prohibition notice can be issued."

He also added that if assemblies cause inconvenience to roads or traffic, conditions can be imposed or bans can be issued, and there are separate regulations on noise. However, "a prohibition notice can be issued for assemblies held until midnight, but there is a loophole in the form of cultural events like the one held by the Construction Union this time," he said.

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