정당법의 위헌성과 지역정당의 정당성: 헌재 2006. 3. 30. 2004헌마246 결정 비판

Abstract

In this thesis, I intended to demonstrate that the Political Party Act(the PPA, hereinafter) preventing local parties for over 60 years is unconstitutional on the one hand, and to make clear that the local party system is constitutionally legitimate and would make the innovation of Korean political culture on the other. To do this, I tried to expose the absurdity and irrationality of the 2006 abjudication of the Constitutional Court, which regrettably had missed the opportunity to rectify the unconstitutionality of the PPA. I carried out the critique of the decision as follows: First, I proved that the Constitutional Court had erred in extending the conceptual marks of the political party without solid foundation. Second, I demonstrated, to the contrast to the Constitutional Court, that the PPA denying the local party could not pass the constitutional test of the proportionality: the aim of the Act could not be justified since it was violating the principle of plural democracy; the excessive registration requirements in the PPA did not satisfy the necessity principle; and the balancing test was not met in that the interest of political stability could not outweigh the fundamental right to freedom of establishing political parties. Third, I asserted, unlike the Constitutional Court, that the current party registration system constituted a violation of equality principle as an indirect discrimination against new political forces; it infringed the plural party system by preventing legitimate activities of small or local parties; and also it did not conform to the principles of local self-government and national sovereignty. Furthermore and finally, besides proving the unconstitutionality of the current registration requirements of the PPA, I positively assert the constitutional legitimacy and political value of the local party system: First, it would contribute to the innovation of Korean political culture by repealing a political climate overdependent on local connections; second, the abolition of exclusion of local parties would open an unprecedented door of opportunity for the new political forces; and finally it would save the sovereign, that is, the present and prospective voters from the hatred of and disinterest in the politics.