통합진보당 해산결정과 소속 국회의원의 의원직상실 문제

Abstract

On December 19th 2014, the Constitutional Court of Korea ordered the dissolution of the 'Unified Progressive Party'(UPP), the respondent party, and forfeited all seats from National Assembly occupied by the party. According to the Court’s decision, all seats affiliated to the members of the respondent party at the National Assembly shall be forfeited from both proportional and regional representatives. The Court’s order to disband UPP arouses an enormous dispute; however, the Court’s verdict of forfeiture of seats in the National Assembly is much more controversial because there is no relevant statute pertaining to this adjudication in the current Constitutional Law. Issues with the forfeiture of seats along with the dissolution system of unconstitutional political parties have constitutionally been a fierce controversy for a long time. Some argue that the National Assembly members’ democratic justification acquired by the national referendum empowers to keep their seats at the National Assembly apart from whose party’s unconstitutionality. Others argue that forfeiture of proportional representatives' seats is inevitable due to their attribution to the affiliated party, but nonetheless, regional representatives should keep their seats. Furthermore, there are contentions that absence of statute pertaining to forfeiture of seats makes the adjudication nullity. On the other hand, the fundamental reasons and purposes of the system on dissolution of unconstitutional political parties implicate whether the seats should be forfeited or not; and the seats affiliated to an unconstitutional party should be forfeited. Forfeiture of seats is a follow-up action to the dissolution decision with prohibition of substitute parties or organizations. The dispute over the forfeiture of seats is controversial; yet, a thoroughgoing denial of losing seats lacks persuasion due to the dissolution system’s essence and functions. Even though seats at the National Assembly affiliated to the unconstitutional party can be forfeited by criminal punishment, National Assembly’s expulsion, and qualifying screening; however, the function of unconstitutional political parties dissolution system distinguished from that of criminal procedure is a precautionary act for preserving the Constitution. For this reason, both dissolution adjudications and criminal procedure laws are recognized separately as well as enforced overlappingly. Furthermore, expulsion or qualifying screening is not effective enough as manifested by Representative Lee Seok-ki’s rebellion plot trial. Hence, it is not a convincing argument. It is a hasty generalization, however, that applying the forfeiture of seats to entire members affiliated to the unconstitutional party even though the forfeiture is recognized as a result from unconstitutional parties’ dissolution adjudication. For example, members who strongly opposed to the party's unconstitutional activities should not be accountable for the forfeiture of seats; because the members have less likelihood to follow unconstitutional political ideologies after the party's dissolution. For these reasons, adjudication of forfeiture of seats should apply to members who actively supported or passively connived at the party’s unconstitutional activities, excluding the members who opposed to the party’s unconstitutional activities. Leaving the pros and cons of the decision to disband political parties itself aside, the Court’s decision to forfeit seats affiliated to the respondent party incidental upon dissolution of the UPP was inevitable in considering dissolution system’s essence and functions. However, legal basis and further legislations should be proposed to establish rational solutions to these matters. No more occurrence of this unfortunate situation of dissolving unconstitutional political parties is definitely and outstandingly desirable; however, laws should provide reasonable alternatives against all possible contingencies at all time.