집회 부대물의 철거와 공무집행방해에 관한 사례

A case as to the removal of the appurtenances to an assembly and obstruction of official execution

In an assembly, ordinarily, speakers or tables, which are appurtenances to an assembly, are needed for the exercise of the freedom of speech and assembly. These objects can occupy some spot of a pedestrian road without administrative permission, and by this reason the occupying objects can be the subjects of removal through administrative vicarious execution. However, whether the “entire” objects should be the subjects of removal has to be reviewed. Constitution prohibits the permission of an assembly and ‘assembly and demonstration act’ does not ask for the permission to occupy some spot of a road when holding an assembly. To protect the freedom of speech and assembly, the less restrictive means must be sought under the principle of proportionality. So if some spot of a road is supposed to be used by the assembly-holder or the assembly-participants and in that spot some objects, which are necessary and indispensable to exercise the freedom of assembly, are placed and those objects do not make any risk in the public, nevertheless, must the assembly-holder obtain the prior permission from the relevant administrative authority which has jurisdiction over the use of road? If there isn’t any clear and present danger and the objects do not bring about any public risk, such prior permission must not be regarded as necessary. So the removal execution to the “entire” objects, not to the unnecessary objects, even though necessary and indispensable objects do not bring about any public risk, can not be legitimate under the principle of proportionality, and the resistance to the removal execution to the entire objects can not be constituted as an obstruction of official execution.