헌법상 정당의 개념과 정당등록제도 및 정당등록취소제도의 위헌성에 대한 재조명

Abstract

The status of a political party under the Constitution has evolved into a phase of hostility, a phase of neglect, a phase of approval and legalization, and a phase of incorporation into the Constitution. Meanwhile, due to the development of the trend of party nationalization, political parties have become a major ideological foundation not only for the voluntary association of important people within the state but also for the realization of the important goal of achieving stable and consistent national operation by fostering high-quality politicians and presenting the policy direction of national policy centered on party politics. According to Article 2 of the Political Party Act, which embodies the concept of a political party under the Constitution, 'Party' refers to a voluntary organization of the people aimed at 'participating the people's political opinions by promoting responsible political arguments and policies for the benefit of the people and recommending or supporting candidates for public office elections. First, the concept of the party law should be pursued, and second, by recommending or supporting candidates for public office elections. This status of a political party approved by the Constitution and embodied by Political Party Act requires a new light on the party registration system and its cancellation system that could threaten the establishment and existence of other parties. Therefore, the purpose of this article is to examine the problems of the current party registration system and the party registration cancellation system under the current party law, which infringes on the freedom of political parties under the Constitution that provides the freedom of political parties’ establishment and guarantee of political parties’ activities. In particular, the true will of the people should be reflected in all processes of the establishment, existence and extinction of political parties, and ultimately the fate of political parties should depend on the will of the people. From that point of view, the requirement must be applied very strictly to cancel the registration of an existing party through the party registration cancellation system, at least to protect the freedom of a political party more strongly. Therefore, Article 44 Paragraph 2 of the Political Parties Act pointed out that the time limit of 'the last four years' is not a period to cover all official elections, and suggested as an alternative that "the last five years" should be included in the "presidential election by term of office" so that party registration can be cancelled only when it has not participated in all official elections held in the last five years. In addition, the Constitutional Court's decision on the unconstitutionality of the grounds for cancellation of party registration under Article 44 (1) 3 of the Political Parties Act was pointed out and criticized in detail. Under our Constitution, the freedom of political parties is a key freedom of democracy that must be strongly protected from the establishment, existence and its demise. Therefore, it would have been more desirable if the Constitutional Court had argued against the unconstitutionality of the requirement for the cancellation of party registration and made further attempts on the inherent problems of the party registration cancellation system based on the party's constitutional ideology.