당내경선시 경선운동과 선거운동의 확정적 구별론에 대한 비판적 문제제기 - 대법원 2013. 5. 9. 선고 2012도12172 판결 -

Mobilizing organization and allocating funds during the party primaries wereacquitted by the Supreme Court because these acts were not regarded aselection campaigns. However, according to the past experience, mustering support organizationand spending money throughout the party primary a month beforeparliamentary election are in fact considered as acts of campaign in pursuitof the original election. Especially, when in the case where a particularpolitical party wins overwhelming majority of votes in a certain area, thecandidate recommended by a political party constituency of that region issure to win the election. Therefore, the judgements made by the SupremeCourt is to be criticized for failing to recognize this reality. Today in Party democracy, the nomination of political party candidates is not limited to being a party's internal problem but an important first step andan integral part of the electoral process. The political reality of the Partydemocracy today highlights the nomination process as a part of the electoralprocess and thus, it is inevitable that the nomination process be regulated bythe electoral law. Furthermore, the judicial interpretation for ensuringfairness and legitimacy of the process will be important. According to the US Supreme Court judgement, the party primary campaignand the election campaign are seen as equal and therefore, the party primaryis considered to have the ability to perform the task of state. Taking thismatter into considerations, the judgement made by the Supreme Court mustbe revised as its decision were biased by definitively distinguishing the partyprimary campaign and the election campaign. In Germany, the local council election was declared as void because of itsnon-democratic party nomination. Taking the case as an example, thedecision made by the Supreme Court should be reconsidered in thecomparative law perspective.