장애인의 참정권 보장 ― 정신적 장애인의 선거권 문제를 중심으로 ―

Protecting voting rights of disabled persons who are exposed to social exclusion is important for the protection of fundamental human rights in the same way as non-disabled persons. Moreover, it is crucial to the expansion of disabled persons' opportunity for social participation. Until now, the major issues of disabled persons' political rights were moving and entering to polling place, accommodating disabled persons in the polling place, accessibility to election information and equality in election campaign. Most of these issues were focused on physically disabled persons who undoubtedly have voting rights. Therefore, mentally disabled persons were located in the blind spot. Under these circumstances, public official election act which exclude voting rights of incompetent persons should be reviewed since the incompetency‧quasi-incompetency act was abolished and adult guardianship system was adopted by the 2011 civil law revision. Restriction of voting rights based on ability is related to the protection range of universal suffrage. The purpose of restricting voting rights of persons who lack political judgement such as mentally disabled persons is to secure fairness of the election. Even if certain restriction against mentally disabled persons is necessary to secure fairness of the election, current legal system of overall restriction is unconstitutional. Thus, reasonable standard is required. Setting the standard for voting rights of mentally disabled persons is a political decision alike to the definition of disability. Granting voting rights to mentally disabled persons does not lead to substantial protection of the principle of universal suffrage. Realistically, protecting voting rights of mentally disabled persons lead to the issue of substantial protection. Due to the accessibility issue, mentally disabled persons' turnout would be low. This is a issue of realizing equal rights of the disabled persons. In conclusion, in order to substantially protect the voting rights of the mentally disabled persons, active actions considering disability is needed. Thus, reasonable accommodation must be accompanied. The modern meaning of universal suffrage is not only granting formal voting rights, but to develop voting system which can bring people to exercise practical effects on political process. Therefore, viewing from the concept of universal suffrage principal, granting voting rights of mentally disabled persons can cause unfairness in the result due to the insufficient judgement of some mentally disabled persons. In addition, to promote mentally disabled persons to exercise practical effects on political process, realistic methods to promote voting participation is required. Reasonable accommodation for mentally disabled persons is essential and such accommodation will bring positive effects on the protection of universal suffrage and realizing constitutional value.