지방자치단체의 장 선거권과 피선거권에 관한 管見- 단체장 선거권을 헌법상 권리로 인정한 결정(2014헌마797)에 대한 비판을 중심으로 -

Abstract

The Constitutional Court made many different judgments related to the “right to vote for heads of local governments.” With respect to the claim by the persons directly involved, the Constitutional Court has been rather insufficient to demonstrate fully if there is a reason for the claim and especially whether the right to vote for heads of local governments is a fundamental right. The present study also discovered that there were no precedent changes when the interpretations of constitutional provisions applied to the concerned cases were different from the old ones. Finally, the Constitutional Court provided three grounds for the recognition of the right to vote for heads of local governments as a constitutional right: “nature of the local governance system,” “practice of the election for heads of local governments and people's perceptions of it,” and “prohibition of dualization between the right to vote for heads of local governments and the right to vote for members of local assembly.” These grounds were not, however, valid ones. Because of these arguments, it still remains as an issue whether the right to vote for heads of local governments is a constitutional right or a legal one. There should be constitutional grounds at least to recognize a right specified by law as a constitutional right. If there are constitutional grounds for the right to vote and eligibility for election for heads of local governments found in Articles 24, 25, and Article 118, Clause 2 of the Constitution, the act should be considered as a specification of these constitutional provisions rather than a new one created according to legislative formation by a lawmaker based on the law.