The purposes of this study were to understand the electoral management bodies of the Republic of Korea including the Election Commission and establish a theory to devise improvement measures for them. The study was based on the problematic consciousne...
The purposes of this study were to understand the electoral management bodies of the Republic of Korea including the Election Commission and establish a theory to devise improvement measures for them. The study was based on the problematic consciousness that there was a lack of constitutional researches on electoral management bodies.
Election works to elect a ruler and lay out a ruling system, while granting democratic legitimacy to power and controlling it. Competitive elections should be conducted to make the most use of their meanings and functions. Needless to say, competitive elections should be free and fair. There is no realization of responsible politics and development of democracy without the activation of their functions.
The election management is an operation of managing and running an electoral process and needs to be understood through the functional approaches to the Separation of Powers. It is valid to see the legal nature of the election management as an administrative operation for political development. The election management ensures that an election serves as a controlling device for power by democratic election.
In South Korea, electoral management bodies started in the offices of the Ministry of Home Affairs. After an electoral management body, merely a department of the Executive branch, failed to manage the fair election, a constitutional agency independent from the Executive was established in 1960. The Judicature's intervention in the election management began to increase, and the organization and the authority of the Election Commission expanded. The question is based on the developmental level of democracy in South Korea whether the status, organization, and authority of the Election Commission are appropriate or they need an improvement.
Based on the understanding that there was a trend of the installation of an independent electoral management body due to the Executive branch's intervention in elections, this study sets a government model, independent model, and mixed model about the relationship between electoral management bodies and the Executive branch. The study also establishes many different hypotheses derived from the constitutional theory and conducts a comparative legal research on the electoral management bodies in 15 states to test the hypotheses, and reaches:
First, the nations with the presidential system tend to choose the Independent model. Second, there is no correlation between the electoral management body models and the forms of state such as the federal and unitary states. Third, when the election management is divided into election implementation and supervision, the latter demands highly advanced policy judgments and strict neutrality and is left to an independent commission. Finally, the selection of a certain electoral management body model is not a requisite for democratic elections, and there can be differences in the selection of an electoral management body according to the developmental level of democratic politics.
In South Korea, the Election Commission is an essential agency based on the Constitution and has the features of agency organization based on the council system. It cannot be subject to any amendment without a constitutional amendment. Legal professionals hold majority seats on the commission as members. The incumbent Supreme Court justice also serves as the non-permanent Director of the National Election Commission. It has a large secretariat office. As a national organization, the number of full-time employees continues to be increased. It has expanded the scope of its affairs to referendum management, party, and political funds beyond election management.
In Chapter 4, Section 1 discusses the perspectives of improving the Election Commission system; Section 2 reviews the status and organization of the Election Commission; Section 3 analyzes its authority and proposes improvement measures; and Section 4 explores the possibility of modifying the concerned legislative systems including the Constitution and Election Commission Act.
The election management works to ensure an election performs its functions. There is a need for a shift from the regulation-centered election management approach to the approach that guarantees the freedom of election as much as possible. The most important value is the freedom of election. Fairness of election serves as a means of freedom of election.
The Election Commission can be recognized as an independent constitutional agency. The directorship of the National Election Commission should become permanent. The current system of the Executive, Legislative, and Judicative branches getting involved in the National Election Commission with three members per each should be corrected.
The principles of an electoral management body are legitimacy(independence and fairness) and rationality(efficiency and economy). It should be noted that the latter should be taken into account when the democratic election enters a stabilization stage. In addition, secretariat offices should not be allowed to affect the commission and be more efficient.
It is valid that South Korea chooses the independent model as a state with the presidential system. While election implementation is up to a local organization, election supervision is up to a central organization. In 2012, South Korea scored total 8.13 points on Democracy Index, which means that it belongs to the complete democracy group. A decentralized electoral management body fits the developmental level of democratic politics. The Election Commission needs to escape from the dependence on the Judiciary. An electoral management body for full democracies is based on the authority stemming from the encouragement and support of people rather than the authority dependent on the Judiciary.
The study theoretically examines democratic elections, legal nature of election management, and the principles of electoral management bodies and presents the problematic consciousness derived from the history of electoral management bodies of the Republic of Korea. The study also establishes some hypotheses regarding electoral management bodies and tests them through a comparative legal research. In addition, it analyzes the status, organization, and authority of the Election Commission of South Korea, identifies its problems, and explores for its development directions. Based on the research, the study highlights that an electoral management body has the status of a constitutional agency, needs to set its status and organization based on its functions, and should focus on the promotion political development.