장애인 이동권보장목적 지하철탑승시위의 헌법적 정당성에 관한 연구

A Study on the Constitutional Justification of subway boarding Protests for the Mobility Rights of Disabilities

Since December 2021, the Solidarity Against Disability Discrimination (SADD) has been continuously staging subway protests to demand the guarantee of mobility rights for people with disabilities. As these protests have continued for an extended period, public dissatisfaction has grown, sparking debates about the legality and legitimacy of such demonstrations. Guaranteeing mobility rights for persons with disabilities is an essential prerequisite for their participation in society, and demonstrations advocating for such rights are based on the constitutionally protected freedom of assembly. However, the freedom of assembly must be exercised in balance with the need to maintain public order and safety. If such assemblies involve violence or illegal acts, they may constitute a violation of the constitutional right to assembly and may also be prohibited under laws governing assemblies and demonstrations. This paper first explores the constitutional significance of the right to mobility and the freedom of assembly from a theoretical perspective, followed by a discussion on the limitations and restrictions of the freedom of assembly. It then examines the constitutional legitimacy of restricting subway boarding protests aimed at guaranteeing mobility rights for persons with disabilities. This includes analyzing whether such protests at subway stations are legitimate, whether advance notice was given, whether orders to disperse in the event of violations were lawful, and whether dispersal orders issued during the protests were justified, primarily through the lens of the principle of proportionality. Taking into account the nature, method, and consequences of the physical force used during the protest, the subway boarding protests cannot be deemed a socially acceptable level of force used within a reasonable scope necessary to achieve the objective of ensuring mobility rights. While peaceful protests without explicit violence must be protected, the public is generally expected to tolerate some inconvenience caused during demonstrations. However, the subway boarding protests exceed what the general public can be reasonably expected to endure. Therefore, the dispersal orders issued in response to these protests are considered constitutionally justified.