중증장애인의 선거권 배제에 대한 헌법적 고찰

In South Korea, the civil law was revised to eliminate the Sentence of Quasi-incompetence and Incompetency and changed to a Guardianship System. The Public Official Election Act stipulates that those who do not have the right to vote and still have a sentence of Incompetency make it unclear whether an adult guardian has the right to vote. Under the Public Official Election Act, if a person who is pronounced Incompetency in court is uniformly amended as an adult guardian, he/she will be deprived of the right to vote of the adult guardian who can make political judgment and vote in public official election. This is likely to violate the right to vote of the adult guardian. Article 13 (2) of the German Federal Election Act stipulates that a severely handicapped person whose adult guardianship has been initiated by a court shall be excluded from the German Parliamentary and European Parliamentary election. A petition was challenged with the Federal Constitutional Court of Germany whether Article 13 (2) of the German Federal Election Act is consistent with the German Constitutional Law. Article 13 (2) of the German Federal Election Act, which does not grant the right to vote to adult guardian, violates the universal ballot principle of “Every citizen has the right to vote and to be elected in principle” in article 38 (1) p.1 of the German Constitutional Law. Article 13 (3) of the German Federal Election Act, which excludes the right of incapacitated prisoner in incompetent mental hospital, is an imposition of penalties for the ‘disability’ of article 3 (3) p.2 of the German Constitutional Law. Thus, Article 13 (3) of the German Federal Election Act, which excludes the right to vote in person who is held in mental hospitals, is in violation of the ‘no penalties’ on the grounds of ‘disability’ in article 3 (3) p.2 of the German Constitutional Law.