공직선거법상 무투표당선과 관련한 몇 가지 쟁점

This paper deals with some issues on the application of election walkover(return without voting). 89 candidates in total has been elected walkovers in the 7th Local Election which was taken place on June 13, 2018. Election walkover was first introduced in 1948 National Assembly Election Act under the U. S. Military Regime, which has been applied to some elections ever since. Constitutional Court ruled that election walkover is not unconstitutional, reasoning that it is within the legislative discretion and a certain amount of votes is not necessary for the representatives’democratic legitimacy(2014Hun- Ma797, Oct 27, 2016) But there are some problems in the application of the election walkover under the Public Official Election Act. First, the applicable range of the Act. The Act explicitly prescribes the election walkover only in the election of Local Constituency National Assembly Members(§188②), Local Council Members of Local Constituency(§190②), Heads of Local Governments(§191④, mutatis mutandis application of 188②). There are no explicit clauses in the election of Proportional Representative National Assembly Members and Proportional Representative Local Council Members(§189, §190-2). There are no mutatis mutandis application stipulations to the last two elections. So, decision of walkover based on Elected Proportional Representative Local Council Members of Election Commission is a violation of the Act and unconstitutional action. An elector may file a election lawsuit. Second, the Act explicitly prescribes restriction on election campaign is applied to where a candidate resigns or dies or his/her registration becomes invalidated, after the registration of candidates is closed, so that the number of the candidates of the constituency becomes short of the fixed number of the members to be elected in the constituency and the voting is not held(§275). So, this clause is not applied to other election walkover case that candidates who do not exceed the fixed number of the council members to be elected in the relevant constituency at the time when candidate registration is closed. If restricted, an elector or a candidate may file a Constitutional Complaint against the provision and/or a reply of the Election Commission which comes exercise of the public authority.