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The Political Effects of Judicial Decisions : A Critical Review of Constitutional Court Decisions Concerning Political Parties

  • DONG-A LAW REVIEW
  • 2013, (60), pp.1-28
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Shin, Woo Cheol 1

1중앙대학교

Accredited

ABSTRACT

The Constitutional Court of Korea, under the influence of the German “Parteienstaat(party state)” theory, has widely accepted the constitutional privileges of political parties, even more widely than the Federal Constitutional Court of Germany. Moreover, the Constitutional Court of Korea has strongly upheld strict party discipline, even more strongly than the Federal Constitutional Court of Germany. However, such “pro-party” tendencies of the Constitutional Court cannot be consistent with our presidential system, which requires weak and undisciplined parties. They don’t match with our plurality election system, either. In 2004Hun-Ma246 decision, the Constitutional Court of Korea accepted the high standard of party registration as constitutional, holding that it can promote political stability in our parliamentary democracy. In 2004Hun-Ma655 decision, the Constitutional Court also accepted the discriminative standard of public financing to parties as constitutional on similar grounds. With the two decisions, the Constitutional Court discouraged new and minor parties, as well as regional parties, and thus substantially reduced political competition. In both cases, the Constitutional Court of Korea went far beyond the Supreme Court of Canada in its Figueroa v. Canada case and the Federal Constitutional Court of Germany in its party finance cases. In 97Hun-Ma262 and 99Hun-Ma135 decisions, the Constitutional Court gave high priority to the constitutional right to participate in political parties. Together with the existing strong party discipline, however, it may cause dangerous situations in our “yet young” presidential system. In conclusion, I maintain that the Constitutional Court should send new judicial signals to “soften and smoothen” the current “strong and stubborn” party politics.

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