정당국가적 현실과 자유위임의 원칙에 관한 연구- 국회 위원회 위원의 사․보임행위에 관한 헌법재판소 결정을 중심으로 -

Democracy today is operated with focus on the existence of political parties that were not present in the ideals of classic representative democracy. This also has an influence in relation to the conventional division of powers; that is, the idea of dividing the powers into the Legislative, the Executive, and the Judiciary Branches to prevent abuse of power with mutual checks and balances is also not properly operated in terms of strict separation or independence of powers, as the powers are concentrated around political parties. Another phenomenon caused by the growing importance of political parties is the activity patterns of individual members that constitute the National Assembly. Members of the National Assembly, as the representatives of the people, were ideally those who reach the utmost will of the state through discussion and compromise with their own independent, liberal and rational inquiries and efforts in regards to national interests for the benefit of all the citizens. The members are elected by the choice of qualified voters in individual electoral districts. However, in terms of parliamentary activities to determine what national interests are in consideration of various interests and relevant circumstances in the society, they are not bound to the orders or commands of the constituency that elected them, or certain social organizations or interest groups that may have had a decisive effect on the outcome of the election as the members. The National Assembly members are not merely envoys or messengers representing the interests and following the directions of the members of the administrative district that elected them, but are representatives of all citizens who explore and decide what would be most beneficial to the state based on their independent judgment. However, the original meaning and value of their status could no longer be maintained easily in the present situation of the political system that operates with focus on political parties. Throughout the entire process, from the election through which the members are elected and enter the National Assembly to parliamentary activities in which they decide on the will of the state through mediation and compromise of conflicts of opinions and interests within the National Assembly about specific issues and enable introduction and implementation of actual policies, political parties are performing an extremely important role. Thus, it is difficult in reality to expect the National Assembly members to fulfill their original ideals while they are disregarding their status as members of a political party and making independent judgments. The tendency to shift to a party state is a situation that is actually experienced, and it has certain effects in its own way. However, this realistic situation cannot ignore or exclude the so-called principle of free mandate that guarantees the activities of individual members as representatives of all citizens, which is the fundamental principle of representative democracy. However, it is necessary to closely review how this reality and the principle can be understood harmoniously in concrete situations. This study analyzes and reviews how the principle of free mandate must be understood and implemented in this reality of a party state, with focus on the content of the Constitutional Court decisions on the activities of resignation and appointment performed by the Chairman of the National Assembly against the will of the National Assembly Committee members.