South Korea's Constitutional Court ruled Thursday that a law mandating uniform criminal punishment for outdoor assemblies held without prior notification violates the constitution.
The court issued the ruling in a constitutional complaint filed by three petitioners, including Park Kyung-seok, head of Solidarity Against Disability Discrimination, who were convicted of violating the Assembly and Demonstration Act.
The petitioners challenged Article 22, Paragraph 2 of the act, which stipulates that organizers of unreported outdoor assemblies face up to two years in prison or fines up to 2 million won ($1,400).
All three petitioners received either fines or suspended prison sentences for organizing outdoor assemblies without prior notification. Park was indicted for violating the act during a protest in Seoul's Jongno District in April 2021 and filed the constitutional complaint during trial. He received a four-month prison sentence with two years' probation in October 2022, which the Supreme Court upheld in February last year.
Of the nine justices, four ruled the provision "incompatible with the constitution" while four others deemed it outright unconstitutional. Constitutional Court rulings require at least six votes to declare a law unconstitutional, and eight justices acknowledged the provision's unconstitutionality in this case. Justice Cho Han-chang was the sole dissenter, ruling the provision constitutional.
The four justices who ruled constitutional incompatibility, including Chief Justice Kim Sang-hwan, stated that "punishing all unreported outdoor assemblies without exception—even those that objectively pose minimal risk to others' fundamental rights or public order and have concluded peacefully—excessively restricts freedom of assembly beyond what is necessary to achieve legislative objectives."
Justices Jung Hyung-sik and Jung Gye-sun, who favored an outright unconstitutional ruling, said "punishing organizers of unreported assemblies the same as organizers of prohibited assemblies constitutes excessively severe punishment." Justices Kim Bok-hyung and Ma Eun-hyuk noted that "imposing prior notification requirements uniformly without exception and penalizing non-compliance equally without exception violates freedom of assembly."
Justice Cho, the lone dissenter, explained that "it remains unclear whether legislative objectives can be achieved through administrative sanctions lighter than criminal punishment" and that "the punishment provision falls within the legislature's discretionary authority."
However, while acknowledging the unconstitutionality of uniform punishment, the court ruled the provision "incompatible with the constitution" rather than unconstitutional, maintaining its validity until August 31, 2027. The court noted that determining specific exceptions to punishment is a matter for legislators to decide. A constitutional incompatibility ruling acknowledges a law's unconstitutionality while temporarily maintaining its application for legal stability, requiring lawmakers to eliminate the unconstitutional elements within a specified period.
Meanwhile, the court ruled 7-2 that Article 6, Paragraph 1 of both the current and former Assembly and Demonstration Act, which requires prior notification for outdoor assemblies, is constitutional. The provision mandates that assembly organizers notify the local police station at least 48 hours before the event. The court stated that "this does not violate the principle of legality or clarity, nor does it infringe on freedom of assembly in violation of the proportionality principle," adding that "prior notification provides important information enabling authorities to take necessary measures for maintaining order, and the 48-hour advance requirement is not excessive."
Justices Kim Bok-hyung and Ma Eun-hyuk dissented, stating that "there is no practical need to impose prior notification requirements on outdoor assemblies with no probability or foreseeability of harming public order" and that "even if an assembly subsequently turns violent, this can be sufficiently sanctioned through the Assembly and Demonstration Act and criminal law."
The Constitutional Court noted that this decision reverses precedent regarding the punishment provision while maintaining precedent on the notification requirement. The court explained that "this ruling is significant in recognizing that criminal punishment, unlike administrative regulation, must evaluate an act's wrongfulness by considering individual and specific circumstances, and that exceptions should be made when the risk to protected legal interests is objectively minimal."