국민의사 실현을 중심으로 한 자유위임원칙과 정당기속의 관계 - 국민·정당·국회의원이 형성하는 삼각관계를 중심으로

According to Article 8 of the Constitution and Article 2 of the Political Parties Act, political parties are voluntary associations of citizens established for the purpose of participating in the formation of the political popular will. Within Korea’s constitutional order, political parties serve to aggregate and articulate the sovereign will of the people and function as intermediaries that convey such will to state institutions. The entity that transforms the popular will, as aggregated by political parties, into the official will of the state is the member of the National Assembly. As representatives of the entire people, members of the National Assembly are constitutionally mandated to exercise responsible government through the principle of free mandate in the process of translating the popular will into state will. However, the principle of free mandate, as exercised by legislators in their capacity as representatives of the entire people, may conflict with the de facto binding force of political parties. Such a conflict can be assessed by distinguishing between different scenarios, particularly with reference to the realization of the popular will. The first scenario arises when either the political party or the member of the National Assembly fails to represent the popular will. In such cases, constitutional priority ought to be given, in principle, to the actor that better reflects the popular will. From the standpoint of representative democracy, the failure of a political party to represent the popular will is generally more problematic than that of an individual legislator. This scenario requires further differentiation depending on the extent to which the party’s articulated will violates or contradicts constitutional norms. Accordingly, in cases where the party’s position is constitutionally or legally flawed, mechanisms for the legislator to restore the principle of free mandate—despite the de facto party discipline—must be examined. The second scenario concerns instances in which both the political party and the member of the National Assembly are aligned with the popular will. In such situations, both the principle of free mandate and the de facto influence of party discipline are constitutionally permissible. Even if the legislative accountability by the legislator results in a weakening of party discipline, this does not amount to an unconstitutional infringement on the essential content of party autonomy. As this scenario essentially presents a question of balancing competing interpretations of the popular will, it becomes necessary to assess the substance of the popular will that is prioritized through the party’s official position. This includes examining the actors, procedures, and timing involved in forming the party line. Once such party policy reflecting the prioritized popular will is established, further analysis is required regarding the permissible forms of de facto party discipline that may be employed to enforce it.