정당등록취소와 정당설립의 자유

다국어 초록 (Multilingual Abstract)

According to Article 44 Paragraph 1 No. 3 of the Political Party Act, the political party who does not acquire any seat and 2% and over of the total ballots in the general election by term expiration is dissolved by the pertinent Election Commission. The doubt has been raised whether the cancellation of registration of a political party by the rate of number of votes gained can be constitutionally justified or not. In the decision of April 27, 2006, 2004Hunma562, the Constitutional Court dismissed the case under the reason that the Clause of cancellation of registration of a political party does not directly infringe the constitutional rights of the petitioners, while the dissenting opinions insist that the Clause infringes the freedom of the establishment of political parties under the assertion that the directness of the infringement on the constitutional rights by the Clause is recognized.
Meanwhile, the Seoul Administrative Court requested the constitutionality of the Clause reasoning that the Clause infringes the freedom of activities of political parties. So recently, in the decision of January 28, 2014, 2012HunGa19, the Constitutional Court decided the Clause is unconstitutional and void, because the Clause infringes the freedom of the establishment of political parties. In the result, the Court's decision is legitimate. However, the decision has some serious problems in the reasoning, which cannot be justified. In my view, it misunderstood the function of political parties, the democracy of political parties, and freedom of establishment of political parties,
The Clause violates such various constitutional principles as the democracy of political parties, the freedom of establishment of political parties, the plural party system, the plural democracy system, the system of dissolution of a political party, the principle of proportionality, the principle of equal protection, the separation of powers, etc.
Not only majority opinions by major or big political parties but also minority opinions by minor or small political parties should be respected. The just democracy is base on the protection of minority. Then, the integration of society can be realized.

참고문헌 (Reference)

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