정당의 공직선거후보자추천을 위한 당내경선에 대한 헌법적 검토

Constitution of korea provides ‘political parties shall be democratic in their activities’. But the korean public official election act provides ‘every political party may recommend candidates through intra-party competition to run in the elections of public offices’, and ‘the intra-party competitions (including any poll instead of the intra-party competitions, which is conducted on persons who are listed as candidates for the intra-party competitions according to the party’s constitutions, regulations or written agreement that is reached among candidates)’. According to election act, political parties are is free to primary election. Absence of regulation on primary lead to crisis of party politics. Korean political parties are not necessary to primary election and could nominate a candidate by their committee. In case of primary there is no rule regulate scope of voters and they need not keep the basic principles of election. At a point of constitutional view, nominate a candidate by political parties is not merely its internal problems, but a part of public election. The government have a duty regulate a primary in accordance with constitutional law. Therefore, political parties must nominate a candidate through primary election and they must keep the basic principles of election. Opinion research or mobile vote are not compatible with the basic principles of election. Participatory democracy must be harmonized with freedom of association. Nonpartisans could not vote before party affiliation for integrity of political party and prevent party raiding. But, top two primary need not this conditions and it change the primary something different than ever before. Management of primary by the Election Management Committee is better than by political parties. Make a voters’ list and inquire of it is very important thing in keeping with principles of election. Above all, the government and political parties should recognize primary as a constitutional issues.