정당등록제도에 관한 헌법적 고찰

By separating the parties from the general freedom of association and independently regulating them in Article 8, the Constitution emphasizes the important meaning of the parties today and the special status of the parties within the constitutional order. Considering Article 8 of the Constitution, at least a political party can be seen as a voluntary political association of the people participating in the formation of the people's political will, and two key elements of the constitutional party concept that can be derived from these regulations are ‘participation in the formation of the people's political will’ and ‘organization necessary for this’. In other words, only these ‘formal party concepts’, which do not provide any factors for the content requirements, would conform to the normative meaning of the pluralist democracy and constitutional party clauses that the Constitution intends. In this sense, the Constitutional Court's definition of a political party with seven conceptual elements has a constitutional problem in that it adds concept elements for no apparent reason to expand the possibility of legal regulation by state agencies. Meanwhile, the party registration system itself does not violate the Constitution. However, considering the meaning of freedom of party establishment under representative democracy, only the minimum registration requirement should be stipulated to ensure two factors: people's participation in the political process of thought, an organization that can estimate the objective seriousness of their participation in elections and political intentions. In addition, the party law should limit the loss of the party's status due to the cancellation of registration to cases where two elements of the party's constitutional concept have not been met. In this sense, the current party law prohibits the establishment of regional political parties in party registration and allows the central party to be placed only in the capital while minimizing the number of legal, municipal and provincial parties to five in order to prevent the disorder of minor parties. In addition, Article 48 of the Political Party Act, which stipulates that the remaining assets of a party whose registration has been revoked shall be disposed of in accordance with the party constitution, and that the remaining assets left undisposed shall be attributed to the national treasury, which also results in the exclusion and compulsory dissolution of the party's right to self-determination on the position of the party, and Article 21 of the Constitution may be seen as an excessive infringement of freedom of association. Freedom of political parties is an indispensable fundamental right in today's democracies. And the most important system of freedom for these parties is freedom of party establishment. Therefore, it is time for a serious constitutional review of the party registration system and the registration cancellation system that could act as a limit to the freedom of party establishment.