현행 재외선거제도에 관한 비판적 고찰

For the voting right is one of the most fundamental and essential right for the realization of Popular Sovereignty, the restriction of the voting right must be minimized. But overseas Koreans haven’t exercised their voting right only because they have lived abroad. After the decision of Constitutional Court declaring the article 37.1 and article 38.1 in 『(Old) Public Official Election Act』 as unconforming to the Constitution on the grounds of infringement of voting right, equality, and the Principle of Popular Suffrage in 2007, the system for voting from abroad is introduced by the revision of 『Public Official Election Act』 in 2009. But the system for voting from abroad cannot be designed and performed easily for its complexity and problematic feature. Except for the critic on that point, there are still some problems of constitutional-unconformity in the present system for voting from abroad. As is well-known, any decision of Constitutional Court that statutes are unconstitutional shall bind the ordinary courts, other state agencies and local governments by the clauses 47.1 and 75.6 in 『Constitutional Court Act』 and many people agree that this binding force can cover not only the main text but also the major reasoning of the decision. From this point of view, unfortunately I cannot think that the estimate of the present system for voting from abroad can be affirmative. The introduction of the system for voting from abroad may be the natural result of the decision of Constitutional Court declaring the unconforming to the Constitution in 2007, but I have to say that the details of the present system cannot meet the demands of the reasoning of that decision in many aspects. In my opinion, there is the necessity for introduction of the voting by mail for correction of the present system. And, taking the Republican Perspectives into consideration, we may have to consider the introduction of the system for voting from abroad again from the beginning.