헌법상 정당조항(제8조) 개정론

Abstract

The Korean Constitution’s political party clause(party clause) and party legislation which were designed during the authoritarian regime have since shaped the reality of party politics and the party system so far. Particularly, the theoretical background and legal argument that formed the basis for such party regulation still impact constitutional jurisprudence and judicial practice. This article thus explores a way forward to get out of the wrong path paved in the past that has led the Korean malfunctioning party politics. In scholarship and politics, the problem regarding the interpretation and reform of party law – ie. ‘Political Parties Act’ – that regulates the political parties has been actively discussed. Relatively, however, any intensive discussion on the party clause in the Constitution which justifies such party regulation was rare. So, in the first place, bringing a new perspective to the interpretation of the party clause would be necessary in terms of de constitutione lata. Nonetheless, a more fundamental solution would be revising the party clause, Article 8, of the current Constitution, which remains in its original form for the last sixty years and keeps justifying the anachronic party legislation. In this sense, this article argues it is now inevitable to engage in de constitutione ferenda due to the party clause’s problematic background and interpretative limitations, examines the various ideas presented to revise the party clause in the constitutional amendment discussions under the current Constitution, and finally suggest a desired direction for amending the party clause, Article 8, of the Korean Constitution.