방어적 민주주의 재고: 정당금지 및 민주주의 공고화와의 다층적 관계

Militant democracy is a specific type of democracy that is willing to restrict freedoms and rights to counter those who seek to subvert or destroy it by exploiting democratic institutions and procedures. Today, it is widely accepted that the object of defense－the fundamental democratic order－should be understood narrowly, that the principle of proportionality must be observed when restricting fundamental rights, and that defensive measures should be subject to judicial review. A party ban, which includes the dissolution of a party, refers to a measure that prohibits or restricts the existence or activities of a threatening political party. Since the reasons for a party ban are not limited to the defense of the fundamental democratic order, not all party bans can be said to be based on militant democracy. A party ban is neither an essential element nor an exclusive tool of democratic states. Furthermore, a party may be banned in situations where the existence of a fundamental democratic order cannot be acknowledged, and such a measure cannot be evaluated as being based on militant democracy. In short, the relationship between militant democracy and party bans needs to be understood from a multi-faceted and comprehensive perspective. Diverse reasons for party bans have emerged that were not anticipated by classical militant democracy. However, since party bans based on militant democracy continue to occur, it is difficult to conclude that the paradigm of party bans has fundamentally changed. It is difficult to assert that party bans are more prevalent in nascent or incomplete democracies. Party bans are also observed frequently in states with long-established democratic traditions and in countries characterized by high levels of democratic consolidation. However, the consolidation of democracy leads to the implementation of party bans based on militant democracy in a more proportionate manner. Examples include the German cases, which led to a court dismissal of a petition for the dissolution of a far-right party, an amendment to the Basic Law, and a subsequent decision to exclude it from state funding.