자기제한적인, 유연한 방어적 민주주의와 정당금지 - 한국과 독일의 정당금지 사례를 중심으로

Militant democracy is a theory which indicated intrinsic vulnerability of democracy and suggested a normative alternative for the sake of preserving it. However, it has been subject to various criticisms. Recently, attempts have been made to reformulate militant democracy in more relaxed forms, such as ‘self-limiting militant democracy’ and ‘soft militant democracy’. Today, militant democracy must recognize that all citizens, including anti-democrats, possess rights to participate in the political process. The meaning of democracy that is being defended needs to be understood narrowly. Illiberal measures should be governed by the principle of proportionality and be subject to judicial review. In recent years, South Korea and Germany have addressed the issue of banning “unconstitutional but unlikely to come to power” minor parties. In 2014, the Constitutional Court dissolved the Unified Progressive Party. In 2017, the German Federal Constitutional Court rejected the ban petition against the National Democratic Party(Nationaldemokratische Partei Deutschlands: NPD). The German Basic Law was subsequently amended to create a milder form of sanction than dissolution of a political party, and the German Federal Constitutional Court ruled that Die Heimat(previously NPD) is excluded from state funding for six years. In the context of a self-limiting, soft militant democracy, a softer form of party ban than dissolution of the party could be considered. Comparatively, Germany, Turkey, Israel, and other countries have bans on political parties, such as excluding them from state funding and banning them from participating in certain elections. However, banning a political party risks undermining democracy, so the requirements and criteria should not be too relaxed just because it is a weaker sanction than dissolution.