통일 이후의 방어적 민주주의에 관한 연구 : 인정가능성 및 구체적 적용방안을 중심으로

Militant democracy is the most influential theory which pointed out intrinsic vulnerability of democracy and offered a normative alternative so as to preserve it. This article explores whether militant democracy can be justified as a basic principle of the Constitution of unified Korea. Classical militant democracy is a democracy which is willing to preserve itself by taking illiberal measures against those who seek to destroy it by utilizing democratic institutions. Today's militant democracy should accept that all citizens including antidemocrats possess rights to participate. Illiberal measures, which ought to be reviewed by independent courts, can be taken only to prevent antidemocrats from violating others’ rights to participate or threatening the existence of democracy. Also, such measures shall be governed by the principle of proportionality. Militant democracy can be acknowledged as a constitutional principle after the unification of Korea because fundamental democratic order can also be threatened in the post-unification era. Besides, it is considered that we have the ability to apply militant democracy carefully, while preventing its abuse. However, the application of militant democracy is required to be limited. For instance, terrorism, which lacks legality and adjustment to democracy, cannot be subsumed under the idea of militant democracy. Also, regulations on a challenge to the state’s identity can’t be justified by militant democracy because state’s identity is not a defining characteristic of democracy. Since the dissolution of political parties imposes drastic limitations on political parties, employing softer types of party ban can be considered. Such less restrictive measures would leave a party in existence while limiting its possibilities for political participation. Limitations also can be imposed on state financial support provided for political parties.