개표절차의 공정성과 선거권의 보장－ 헌재 2013. 8. 29. 2012헌마326 결정 －

The Constitutional Court of Korea made a ruling that Article 178 Section 1 of the Public Official Election Act is constitutional on the ground that it doesn’t do a severe harm to a fair election. It is pronounced for the first time by the Court that a fair procedure is required by the protection of the suffrage. The Court seems to recognised a right to a electoral procedure, even if an explicit and specific term is not used in the decision. According to the decision, the scope of protection of the suffrage has expanded to the part of the procedure. Legislators have to comply with this procedural limitations in forming electoral procedures. The legislative discretion has been reduced and the control of the Constitutional Court has been strengthened. And the Court made it clear that a ballot counting must be kept under observation for the will of the people expressed by the ballot to be reflected in the correct election results. This rule is very similar to the ‘principle of the public nature of elections’ which was pronounced by the Federal Constitutional Court of Germany even if the Court did not mention it explicitly. The decision is considered to be a step forward in terms of guaranteeing basic rights compared to the former decisions of the Court. Futhermore, it is a very meaningful decision in terms of the formation of the electoral system that is the basis of our constitutional representative system. Therefore the decision is expected to contribute to the development of our democracy.