demonstration and public safety and order can be properly harmonized. However, restricting
the fundamental rights by law must be limited to the minimum extent necessary for public
welfare. Article 11 of the Assembly and Demonstration Act stipulates that assemblies and
demonstrations are prohibited in places within 100 meters of the capitol, the courthouses, the
Constitutional Court, and the presidential residence, and questions have been raised
consistently from the perspective that the restrictions on fundamental rights should be
limited to the minimum necessary.
In 2018, the Constitutional Court declared that Article 11 of the Assembly and
Demonstration Act was unconstitutional.170) The Constitutional Court held that the
constitutional functions of the National Assembly is compatible with assemblies near the
capitol, and that the protection of the function of the National Assembly should be limited to
physical pressure on the National Assembly members and threats to the National Assembly
facilities, and prohibiting peaceful gatherings in nearby parks and green areas was seen as
excessive. Since then, the Constitutional Court and the courts have maintained the same
stance regarding the courthouses, Prime Minister’s official residence, and the presidential
residence.
In accordance with the Constitutional Court's decision of unconstitutionality, the 20th
National Assembly established a no assembly zone to Article 11 of the Assembly and
Demonstration Act in May 2020; however, a proviso clause is added to cases where there is
no fear of interfering with the activities of the National Assembly, cases where there is no
fear of affecting the independence of judges in their duties or the trial of a specific case, cases
where there is no fear of escalating to a large-scale assembly or demonstration. However,
despite the revision by the National Assembly, many civil groups and experts argue that the
police is left to make a judgement as the amended Article 11 of the Assembly and
Demonstration Act is ambiguous in providing the requirements for exceptions, and claims
that ‘prohibited in principle and permitted as an exception’ does not conform with the
international human rights standards.171)
170) Constitutional Court, Decided on May 31, 2018, 2013HunBa322
171) Jeong, Jun-il, Kim, Seon-il, Critical Review of Article 11 of the Amended ‘Assembly and Demonstration Act,’ 2021.
65
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