集會遊行與公共設施之利用——以公共論壇理論為中心

The Utilization of Public Facility in Assembly and Parade

集會遊行旨在傳達集體意見以爭取支持，故其必然選在人潮較多之由國家或地方自治團體設置管理之公園、廣場等公共設施舉行。然因集會遊行具有多數人聚集一定場所的物理性格，與喧擾、威脅的本質，以及易與其他場所利用者產生利用競合之特性，故在傳統公物理論下，公物管理機關通常不願主動將該等設施提供集會遊行使用，從而得以其舉行不符該公物之設定目的而拒絕利用，以致憲法保障之集會遊行自由無從實現。美國裁判實務為擴大表現活動使用公共設施而確立之「公共論壇」（public forum）理論，對我國前揭課題之解決極有助益，擬引介之。本文擬先論述在公物理論下利用公共設施之原有樣貌，再論國家積極提供集會遊行場所之義務，最後引介該理論並嘗試檢討將該理論廣泛運用於我國集會遊行之可能性等相關課題。

The purpose of an assembly or parade is to convey opinions by gathering of groups for further support. As a result, assemblies or parades frequently take place in public facilities with crowds, such as parks or squares managed by nations or local governments. Yet, because of crowds in assemblies and parades as well as their actions subsequently interfere with users of other venues for the fair use of public environment. Accordingly, based on the traditional theory of public establishment, competent authority of public facilities is rather unwilling to permit the application of the use of their facilities for the purpose of assemblies and parades as the application is subsequently denied citing incongruent use of public facilities. When the refusal is offered on the application of the use of public facilities because it doesn’t meet the goals of establishment of these facilities, the constitutional right of the freedom of assembly and parade is hence violated. This study suggests that the theory of public forum, established from the judicial practices and judgements of the United States and hereafter used to assure people the freedom of expression, should be introduced to our nation as a better solution. In this study, it is argued that the notion of utilization of public facility should be discussed according to the theory of public establishment, and the obligation of a nation to actively offer places for assemblies and parades is also examined. By introducing the theory of public forum, advices and suggestions will be provided to help deal with the relevant issues.