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The Problems of Restricting the Freedom of a Political Party in Political Party Law

  • DONG-A LAW REVIEW
  • 2012, (54), pp.107-148
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Manhee Jeong 1

1동아대학교

Accredited

ABSTRACT

This study analyzes mainly whether the articles in the political party law as the concretizations of Article 8 of the Constitution restrict a political party's foundation and activities, etc are unconstitutional or not in the viewpoint of a political party’s freedom as a fundamental right. Specifically, the recent judicial decision of the Constitutional Court about the Articles to restrict the freedom of a political party will be analyzed in a critical viewpoint. This paper suggests the direction of revision for the political party law. Article 8 of the Constitution ensures the freedom of a political party's foundation and plural party system as an essential element of the free and democratic basic order. For most theories and Constitutional Court, the freedom of a political party's foundation includes the freedom of choice within a political party's organization and its freedom to conduct its activities. However, the political party law stipulates the registration system of a political party, requiring its scale to meet certain conditions(Article 4). The political party law stipulates that political parties shall have five or more City/Do parties and City/Do parties shall have at least 1,000 party members(Article 17, 18). Although these conditions for registration are easier than the conditions of the former military dictatorship, a question about whether the conditions excessively restrict the freedom of a political party's foundation remains. According to Article 44 on revocation of registration, when a political party is established by the National Election Commission becomes incapable of satisfying the requirements for registration and when failing to participate during a specified time, a political party's registration will be revoked (Article 44 Clause 1 Number 1, 2). Moreover, when failing to obtain a seat in the National Assembly after participating an election of the members of the National Assembly and failing to obtain the defined votes, a political party's registration will be revoked (Number 3). In a related problem, to revoke a political party's registration in its failure to obtain a seat after its participation in an election will extremely restrict its freedom. The Constitutional Court has held the registration system of a political party and its requirement for registration as political party is not against the Constitution. The Constitutional Court has held the decision to rejection in the case of adjudication on a constitutional complaint whether the article on revocation of registration as a political party is against the freedom of a political party's foundation (Constitutional Court Decision 2004 HeonMa 256 decided March 30, 2006; 2004 HeonMa 562 decided April 27, 2006). However, I think that the revocation of registration as a political party due to its failure to obtain a seat after its participation in an election is against the Constitution. This results in an obstruction on the advancement of a new political party and its violation of the freedom of a political party's foundation. Therefore, I suggest that this article be abolished. By the reform of the political party law in 2004, the abolishment of a district party chapter also has the problem of being unconstitutional. The Constitutional Court has held that the purpose of the abolishment of a district party chapter is justifiable because responds to providing a structural reform in a political party’s overspending (Constitutional Court Decision 2004 HeonMa 426 decided December 16, 2004). However, this decision can be reexamined for the following reasons. A district party chapter, as the minimum organization of political party in a region, is a precondition for creating the public opinion. A political party should determine whether it establishes a district party chapter. A forced abolishment of a district party chapter by law fundamentally violates the freedom of a political party's foundation and the freedom of selection of a political party's organization. Thus, it violates the principle of prohibiting excessive restriction. In addition, the system of subsidy for a political party from the National Treasury causes a violation on the freedom of a political party from state. We need to review the sum of subsidy from the National Treasury and the standard of its allocation. In conclusion, I suggest that the reform of the legislation ensures the freedom of a political party in full measure. A political party is a precondition for forming the public opinion and a kind of public function, even if the Constitutional Court has held that the articles of restrictions on the freedom of a political party are consistent with the Constitution.

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