범죄자의 선거권 제한의 헌법적 검토 ― 선거권 제한 입법의 위헌심사 및 법관의 개별적 선고 필요성에 관한 논의를 소재로 ―

The right to vote is the minimum requirement of democracy and is an essential means of exercising people’s sovereignty, but major countries maintain criminal disenfranchisement. Those who have been restricted the right to vote will mainly fight for its unconstitutionality through constitutional complaints in accordance with Article 68 (1) of the Constitution. Also, international norms and international courts apply the principle of proportionality to legislations that restrict voting rights. Therefore, it is reasonable to judge the unconstitutionality of the provisions that restrict the right to vote according to the existing criteria for examining the constitutionality of the provision that restricts the basic rights. The unconstitutionality of legislation that restricts the right to vote due to conviction of a criminal offense must be examined in accordance with the strict rules against excessive restriction. This is because the right to vote is a source of national legitimacy and a bastion of basic liberal rights. Not only that, Article 24 of the Constitution does not mean that the right to vote is left to broad legislative discretion. Major countries and international courts also strictly apply the principle of proportionality. Ensuring fairness in elections, preventing crimes, imposition of sanctions to criminals, enhancing civic responsibility and respect for the rule of law are recognized as legitimate legislative purposes that limit the right to vote. However, it is evaluated that the restriction of the right to vote will not secure the fairness of the election, prevent crimes, enhance civic responsibility and respect for the rule of law. Therefore, the suitability of the means is recognized only in the aspect of imposing sanctions by criminals. Restriction of the right to vote based on the sentence of one year does not go against the principle of minimum infringement. However, long-term restrictions on the voting rights of minor electoral offenders do not conform to the principle of minimum infringement. Since the public interest that can be achieved by criminal disenfranchisement is limited, it is necessary to seek improvement measures to promote the balance of legal interests. It is desirable for the courts convicting to specify whether and how long the defendant’s right to vote is restricted. However, it is not essential and undesirable for judges to decide whether to restrict the right to vote on individual cases by exercising discretion.