집회의 자유와 재산권 충돌에서 우리 헌법이 보호하고자 하는 가치

초록

The Freedom of Assembly is one of the Freedoms of Expression protected by the Korean Constitution. On the other side, the Property Right is also a constitutional right provided in Article 23 of the Korean Constitution. Then, what will be the interest which the Constitution should protect when the Freedom of Assembly conflicts with the Property Right?This paper aims at exploring the constitutional answer for this question. To achieve this aim, this paper will examine the problematic provisions of Assembly and Demonstration Act in Korea at first. Then, it will review on whether the sales interest of the shop owners neighboring with the area of the assembly could be protected by the constitution as a Property Right. This paper will analyze the situation as the conflict of the constitutional rights, namely the conflict between the Freedom of Assembly of the assembly host and the Property Right of the neighboring shop owners. From this viewpoint of the analysis, it tries to solve the conflict of the two constitutional rights by applying the Double Standard Principle and some other constitutional theories. Finally, this paper examines on the solution criteria of the conflict of the constitutional rights suggested by the United States Supreme Court through analyzing some Supreme Court cases such as United Mine Workers v. Gibbs in 1966 and NAACP v. Claiborne in 1982, and one California Appellate Court case, Tony Lam v. Ky Ngo in 2001.

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