정치분쟁 해결제도로서의 선거소송의 본질과 관할 -대통령과 국회의원 선거를 중심으로- = On the Nature and the Jurisdiction of Electoral Litigation

다국어 초록 (Multilingual Abstract)

In a democratic republic, the election is the most important process where the people are empowered to fulfil their right to be the sovereign so that the fair and reasonable management of elections is indispensible to the proper working of the democratic process. Having said that, it is very important to institutionalize the judicial process envisaged to redress unfair elections so that the democratic legitimacy can be reinstalled to the representative system of government. The chapter 15 of the Public Officials Election Act(“POEA”) provides the election litigation to manage the causes of democratic crisis and gives the Supreme Court the power to judge election cases. However, a judicial review system in election litigation have faced a criticism that such a system would be at odds with the centralized constitutional adjudication system in which the Constitutional Court is empowered to cover the judicial jurisdiction over constitutional or political cases or controversies including constitutional review of constitutionality of Acts and constitutional petitions. This controversy is stemmed partly from the constitutional situation that the Constitution of the Republic of Korea do not have a explicit provision about the jurisdiction over election litigation. This article aims to discuss this issue from diverse related perspectives. The conclusions can be summarized in four-folds. First, there is no clear-cut constitutional construction that can provide any explicit solution to this constitutional issue of which institution, the Supreme Court or the Constitutional Court, is better positioned to deal with the jurisdiction over electoral litigation. The trust of the people in each institution with regard to its constitutional role in protecting human rights and democracy can be the key factor for the legislature to decide this matter. Second, a comparative survey shows that in those countries where there is a centralized constitutional adjudication system, usually the constitutional adjudication institution rather than an ordinary court including the Supreme Court tends to take the jurisdiction. Third, a constitutional and legal history over this issue shows that ordinary courts have been chosen to take care of election cases. However, this historical path dependency should not be exaggerated since the backgrounds of the whole judicial system need to be reviewed in the process of judicial reform. Fourth, since electoral litigation and election crimes cases have a great impact on the political situation, if a constitutional revision is taken on board, how to reorganize the judicial jurisdiction over political cases like electoral litigation should be considered in terms of the nature of constitutional adjudication as well as electoral litigation.