현행 주민소환제의 민주주의원리에 따른 검토 ― 헌법재판소의 하남시장 소환결정 법리에 대한 비판적 재구성 ―

The problem of civic participation in the decision-making process of the State is an important subject in modern constitutional law studies. In the case of Korea in particular, it is natural that the demand for participation has been rapidly increasing, taking into consideration the fact that the country was ruled by an authoritarian regime since the founding of the nation up to the near-present and the corruption and abuse of power by representatives were not controlled by the people. However, the problem of participation must be approached very cautiously. The history of mass dictatorship and socialist nations proves that an excess of participation may lead conversely to its reduction. Participation may also become dangerous when it is not institutionally absorbed and is instead used as a means for bypassing formal political processes. This will lead to unpredictability in governmental administration, problems in guaranteeing procedural rights and ultimately to the exclusion of the minority from decision-making procedures or the concentration of power in a small group that speaks for the majority. As the problems of Local-level Recalls include the positive and negative points like the background above, this article aims to argue that recall is consistent with representative principle in Korean constitutional context. Therefore, we focus on constitutionality, with sovereignty as an ideological basis for recall and the theory of democracy as a means of establishing specific decision-making procedures of the state. As this article understood Korea's system to be a representative democracy, the crucial issue was to analyze whether the recall was compatible with this system. Although the recall system has been historically associated with a binding mandate and direct democracy, this article proves that the recall system can be differentiated from a popular referendum and the initiative in that decision-making of the state was taken by representatives. Thus the normative possibility of a recall system that acknowledged the principle of free mandate while placing representatives under the control of the people in certain situations is explored and participatory democracy is presented as a constructive basis for such a system. Furthermore, the article shows that our recall system is properly constructed according to these democratic principles. In conclusion, this article is meaningful in that it examines the possibility of realizing a new position for the recall system in the theory of democracy and its limitation in normative aspect on the basis of free mandate in Korea's constitutional system.