「지지후보 없음」에 투표할 헌법적 권리에 관한 소고

Democracy can be explained from various perspectives, but it is common in that it means the political participation of the sovereign people. In modern democratic countries, people's political participation is generally understood as establishing a power system by balancing the possession and exercise of sovereignty through a representative system. In other words, in representative democracy, elections serve the most essential function of exercising sovereignty, and in terms of effectiveness, elections can be said to be the only method of citizens' political participation. Elected state power derives its legitimacy from the people's decisions, and conversely, responsibility for the results resulting from the exercise of voting rights also returns to the people. Considering the overwhelming importance of elections as a method of exercising sovereignty in a democratic country, it will be necessary to broadly guarantee voters' free decisions and the possibility of making choices on the basis of those decisions. This is because under this guarantee, the public's will can be reflected without distortion. However, voters who currently do not have a candidate to support do not have any way to choose without distortion, and the only options are to give up voting or vote for any candidate. This article develops an interpretation that views the right to vote for “NOTA” positively and as part of the constitutional right to vote, saying that the option of “no candidate” should be guaranteed on the ballot for voters who do not have a candidate to support. Our Constitution stipulates that people have the right to vote in accordance with the law, but this does not mean that the legislator arbitrarily sets the election system. It can be said that the legislator specifically forms the election laws necessary to democratically elect representatives from the perspective of the sovereign people. In particular, the Constitution specifies the President and National Assembly as elected national powers and at the same time stipulates election principles, so it can be said that the legislator's consideration of the meaning and content is necessary. The right to vote for “NOTA” is sufficient by adding the option “NOTA” to the ballot paper. If the result of the election is that “NOTA” exceeds the majority, a re-election may be held. The right to vote for “NOTA” allows voters who do not support a candidate to participate in the election and express their true opinions, which may result in an increase in voter turnout. The public will be able to estimate the actual size of democratic legitimacy and use it as information that can be reflected in the next election, and political parties will be able to produce verified candidates and candidates will also be able to work sincerely, thereby improving democratic legitimacy.