공직선거법상 수형자의 선거권 제한에 대한 헌법적 고찰 －헌법재판소 2009. 10. 29. 선고, 2007헌마1462 결정의 평석을 겸하여－

Abstract

It is not proper that constitutional court decided to be constitutionality for the article 18, clause 1, number 2 of the Public Office Election Law by 2007Hun-Ma1462 decision. This is because the purpose of a legislation of this same rule is not fair for the following reason. Namely, it makes it difficult for their re-socialization to restrict the right to vote of the prisoner whom a sentence caught punishment more than imprisonment. And it is not useful for the general prevention of a crime to restrict the right to vote of the prisoner whom a sentence caught punishment more than imprisonment. Moreover, the anxiety to hurt fairness of the election that depended on antisocial inclination of a prisoner is never demonstrated. Also, this same rule uniformly or entirely restricts the right to vote of a prisoner excessively without thinking of any exception such as type of a crime, degree of quality of a crime, long or short of a penalty period, a parolee or a probationer and so on. Besides, this same rule uniformly or entirely restricts the right to vote of a prisoner without prescribing it so that a judge gives the right to vote of a prisoner to every case individually. Therefore, this same rule is violated a principle of balancing test. So, our country must abolish this same rule or revise it not to uniformly, entirely and automatically restricts the right to vote of a prisoner whom a sentence caught punishment more than imprisonment from now on.