판단의 정오(正誤)가 아니라 ‘수사’(rhetoric)로 본 통합진보당 해산결정

Abstract

The dissolution of a political party is the institution to deprive political party`s qualification to participate in politics by force in accordance with the decision of the Constitutional Court if purposes or activities of a political party ruin the existence of the State or is contrary to the democratic basic order. There is dilemma, which is put into a conflict between the protection of the Constitution and the protection of political party on the other hand. This article focuses on whether each individual judgement, the basis of the decision to dissolve a political party, is consistent with the policy of the strict interpretation and application of the constitutional requirements for the dissolution of political party. The issue relating to law on proceedings is a conflict between the decision of the Constitutional Court that comprehensive application mutatis mutandis of Civil Procedure Code is basically no problem and the criticism that the Criminal Procedure Code should be applied as respects the examination of evidence and the finding of fact at least. The author suggests clues to grope for the third differentiated alternative on the premise that the Constitutional Court, as a independent ‘constitutional proceedings maker’, should produce and apply the distinctive discipline. With regard to gratifying the requirements for the dissolution of political party, the issue is the validity of individual judgement which confirms ‘presence or absence of facts’ corresponding to the requirements for the dissolution of political party. So to speak, the core subjects are whether purposes or activities of Unified Progressive Party are recognized ‘the specific risk that may cause substantial evils’ to ‘the democratic basic order’, and whether judgement, presented and considered as conclusive evidence of the risk, that the risk of violent behavior is to be ascribed to the whole Unified Progressive Party is valid. In this article, I will intentionally reserve my judgment on the overall validity of the dissolution decision itself including individual judgements in the procedure leading to the final conclusion. But, at least in the view of the rhetoric, it is pointed out that the reasoning of the Constitutional Court is not sufficiently plausible, especially in the aspect of the logical consistency and the cogency of the legal inferences, to get wholehearted agreement.