공직선거법상 무투표당선제도의 헌법적 문제와 개선방향

Abstract

Regarding elections as a channel for exercising people's sovereignty, the Constitution guarantees the right to vote as a basic right and the electoral system as a system. Based on this, the Public Official Election Act outlines the basic contents of the organization representing the people to be elected, voters' votes for electing the organization representing the people, and the standards for electing the organization representing the people, and stipulates specific procedures and methods for this. On the other hand, the Public Official Election Act stipulates that the elected candidate be determined 'without voting' when the ‘relative majority representation system’ cannot be applied 'when there is only one candidate' or 'when the number of candidates is less than the number of members to be elected in the constituency'. This is called ‘the non-voting election system’. This system is an exception to the voting behavior of electors and the decision of representatives based on the results of voting, which are the essential elements of the constitutional right to vote. In order for this exception to be recognized, it must be consistent with the constitutional popular sovereignty and representative system and the basic principles of voting rights and elections. There is a problem that needs to be resolved. This paper reviewed the issue and suggested improvement measures through revision of the Public Official Election Act and revision of the Constitution. This paper started in examining the Constitutional Court's decision on the provisions of the Public Official Election Act regarding the determination of elected candidates ‘without voting’, as well as the constitutional issues regarding the provisions of the Public Official Election Act. In this case, this paper views the non-voting election decision rule adopted by the Constitutional Court as a restriction on the right to vote, points out the problem of applying the principle of excessive prohibition by adopting a structure similar to the free rights review structure. If screening based on the basic principles of elections is adopted, the regulation of non-voting election decision not only violates the principles of universal suffrage and equal election, but also raises the problem of violating the principle of direct election. In light of these constitutional issues, an improvement plan was proposed to reflect the elector's ‘vote’ and ‘results of the vote’ instead of the rule for determining the winner without a vote as a revision of the Public Official Election Act. And as a more fundamental improvement, it was said that the method of determining representatives should be stipulated in the Constitution in the form of a single article through constitutional amendment.