현행 정당공천제도의 헌법적 문제점

Abstract

The main political parties have adopted the intraparty competing nomination - the direct primary election system - in the 16th and 17th presidential election to enable electorates to select the party's nominees. And for the 5th Nationwide Local Elections on June 2nd, 2010, political parties amended the party rules toward enlarging the participation of the non-members(unaffifiated voters). This direct primary election system was modeled upon that of the United States. It was one of various efforts to reform political parties and politics in Korea. It purports to take root of upward nomination within the party, which helps to fasten the internal party democracy in Korea. The Korean primary election system is still fledgling in light of its short history especially in the legal perspective as well as the practical perspective. In addition, Korean political parties permit unaffiliated voter to vote in the nomination of candidates and it makes use of surveys of public opinions of the candidates in high proportion in evaluation. It casts serious doubts on the possible injury to the party's ideology and representation. That becomes, in turn, the unconstitutional burden to the party's rights of association. In the Jones case, the U.S. Supreme Court held unconstitutional that the state's election law ordered the blanket primary election in lieu of the closed primary election since it violated the political parties' First Amendment rights of association. On the other hand, as mentioned before, Korea has recently adopted the direct primary election system similar to that of the U.S. To study these matters, this paper applies "the Tripartite Model of Political Parties" - the new definition for constitutional muster of the U.S. Supreme Court - to the intraparty competing nomination of the direct primary election system in Korea. In summary, the direct primary election system is founded upon the principle of the political party democracy and party autonomy embodying rights of association and it necessitates the structural compliance with the Korean Constitution. However, the current Public Office Election Act and the political party's charters and bylaws have some unconstitutional provisions. Some of these include the qualification and selection clauses of voters as well as application of surveys of public opinions of the candidates in the process of nomination to represent the political party. These could inflict material injury to the structural compliance with the Korean Constitution. Finally, it should be noted that the open intraparty competing nomination needs to comply firmly with the triangular structure of political party democracy, political party autonomy, and national election for passing constitutional muster.