전투적 민주주의(Militant Democracy)로부터의 민주주의 수호

This article aimed to investigate why dissolving political parties of republic of Korea was different from other countries', and how we should interpret conditions of the provision on dissolving political parties, § 8 (4) of the Korean constitution. The idea of militant democracy, influenced by Europe's experience of fascism, was introduced to protect democracy against anti-democratic actors who use the democratic process to subvert it. However, the idea of militant democracy is confronted by dilemma that it invades pluralism which democracy is originally based on, and gives up the guarantee of political freedom and its trust in the democratic process, in order to defend democracy. And even the concept of militant democracy is fallen onto the paradox of two-edged weapon that threatens democracy itself as well as the opponents of democracy. Therefore, we should find the way how democracy can be defended against misuse of the instruments of militant democracy not in an emergency but in time of peace. In addition to the problems of militant democracy's dilemma, the specific character and historical backdrop of dissolving political parties based upon § 8 (4) of Korean constitution should be considered in the interpretation and application of it: (1) The dissolution of political parties of Korea is aimed to guarantee the continued existence of political parties, especially the opposition parties, rather than to defend democracy against anti-democratic actors. The case of arbitrary and unjust dissolution of an opposition party, “Jin-bo dang” by government under authoritarian regime gave rise to the incorporation of dissolving political parties into the Korean constitution. Accordingly, without the decision of the Constitutional Court, political parties can not be dissolved just by government's order; (2) In Korea, there is special constitutional status granted to political parties. Furthermore, the institution of dissolving political parties composes the constitutional protective system which guarantees the fundamental rights of political parties and political freedom of citizen in order to realize democracy itself and the principle of the people's sovereignty. Therefore, the instrument of dissolving political parties should be taken as a last and exceptional measure. Moreover, each condition in § 8 (4) of Korean constitution should be strictly interpreted and rigidly examined with the principle of proportionality. In this article, I reviewed substantial requirements of dissolving political parties, § 8 (4) of the constitution, in accordance with the purpose of protecting political parties. As an object of judgement and protection, the conceptual category of a political party should be widely interpreted including preparatory committee for the establishment of a political party. And if a political party is divided or merged, new one will not be succeeded the reason for dissolution by the ex-political party. The phrase “if the purpose or activities of a political party are contrary to the fundamental democratic order,…” should be understood as “if the purpose of a political party and its own activities which are combined with each other are actively pursue a goal to destruct democracy itself, abolish pluralism, and aim for totalitarianism with compulsive and violent means, and if the political party is influential enough to actualize the anti-democratic purpose,…”.