헌법재판소의 공직선거법 제191조 제3항 등 위헌확인 결정에 대한 비판적 고찰

Regarding the election of heads of local governments, the Constitution stipulates in Article 118, Paragraph 2, “Methods of selecting heads of local governments,” and that this is determined by “law.” The Public Official Election Act comprehensively stipulates necessary matters regarding the method of electing heads of local governments, along with the constitutional presidential election, national assembly election, and local council member election. Article 191 of the Public Official Election Act stipulates the non-voting method of determining the elected leader as one of the ‘election methods’ for local government heads under the Constitution. In this paper, we reviewed the Constitutional Court’s decision in this regard and suggested a desirable direction of interpretation based on the review. In relation to the Constitutional Court's decision on Article 191, Paragraph 3 of the Public Official Election Act, which stipulates the non-voting decision to elect the head of a local government, the review of this paper involves specifying the subject of judgment, determining the fundamental rights violated, and applying review standards. etc. were targeted. In relation to specifying the subject of adjudication and confirming the violated fundamental rights, the object of the claimant’s claim and the violated fundamental rights according to the disposition principle were not confirmed as the subject of adjudication and the violated fundamental rights, but the ex officio principle was applied to limit the violated fundamental rights. However, in accordance with the purpose of guaranteeing fundamental rights under the Constitution and the logic of expanding the scope of judgment, in relation to this case, if there is only one candidate closely related to Article 191 (3) of the Public Official Election Act and the requirements for election without voting are met, the election campaign is not allowed for that candidate. It is believed that it was necessary to include Article 275, which stipulates the suspension of, in the subject of judgment ex officio. In addition, even if the subject of judgment is expanded or not, it is not considered appropriate to exclude the right to know and the right to equality as violated basic rights from the subject of judgment. In addition, the right to vote for heads of local governments established by the Constitutional Court as a fundamental right that has been violated requires a change in the previous decision of the Constitutional Court, but the failure to provide arguments or reasons for this can also be pointed out as a problem in the adjudication process. In applying the examination standards, the Constitutional Court established the right to vote for local government heads as a basic right, recognized the non-vote election decision rule as a restriction, and adopted a structure in which the strength of the restriction was reviewed by applying the principle of prohibition of excess. This review structure appears to be a way to avoid review based on the most important basic election principles that govern all areas, including constitutional elections, voting rights, and the electoral system. Under the Public Official Election Act, the non-voting rule for local government head elections can be viewed as a method of forming or restricting the electoral system and voting rights, and it required examination in accordance with the basic principles of elections, which serve as a limit to the formation of legislators in this regard. That can be said to be the most appropriate screening standard.