정당의 자유를 제한하는 전국정당요건의 위헌성

Abstract

This paper reviews the Constitutional Court’s decision 2021Hun-Ka23 and others, ruled on September 26, 2023, concerning the constitutionality of party registration requirements. Among requirements according to the Political Parties Act, this paper focuses on the so-called national party requirement: The Act compels the establishment of five or more municipal parties for registering any political parties. This paper critically engages in the Constitutional Court’s main arguments of both sides on this.
 Regarding the national party requirement, the opinion by four constitutional judges was constitutional, while five judges were of the unconstitutional opinion; yet, it was decided to be constitutional because a quorum was not reached. This paper critically examined the main arguments of the ruling opinion and then examined the validity and limitations of the main arguments of the majority opinion which argued the provision was unconstitutional. In this decision, the Constitutional Court presented some useful arguments based on the unconstitutionality of the national party requirement, while the arguments for the constitutionality of the provision were insufficient. In this regard, the decision raises the prospect that the Constitutional Court will make a forward-looking decision on related issues in the future. Additionally, this paper concludes with a suggestion that to realize the people’s freedom of political parties and party democracy, it is not only a legislative task for the legislature but also a serious interpretive task for the Constitutional Court to remove the legacy of the authoritarian era that remains in the Political Parties Act.