비례대표시․도의회의원 선거의 저지조항 재고(再考)

Article 190-2(1) of the Public Official Election Act provides a so-called “five percent threshold clause,” under which seats in the elections of the proportional representation members of City/Do councils are allocated only to political parties that obtain at least five percent of the total valid votes. In light of the recent decision of the Constitutional Court of Korea(CCK) declaring the threshold clause in the proportional representation elections for the National Assembly unconstitutional, it is necessary to rethink the constitutional legitimacy of the threshold clause at issue as well. The above decision of CCK, the German Federal Constitutional Court's decision on the unconstitutionality of the threshold clause in the election of the proportional representation members of local councils, and the relevant opinions of the Venice Commission suggest that the constitutional justifications for a threshold clause generally include “the need to limit the number of parties entering into representative bodies”, “the risk of hindering the formation of broad public consensus”, and “the potential impairment of the stable functioning of representative bodies.” However, it is difficult to find such justifications for the threshold clause at issue. Given the current electoral system and political realities of local councils, the absence of a threshold clause would not lead to a significant increase in the number of parties entering into local councils. Moreover, the essential function of local councils lies not in forging nationwide political consensus but in faithfully addressing diverse local interests. In addition, considering the method of forming local governments and the administrative character of local councils, the presence of multiple parties in local councils would neither obstruct governmental-formation nor legislative functions. On the contrary, it may enhance local councils’ function to effectively keep local governments in check. Accordingly, abolishing the threshold clause in the elections of the proportional representation members of City/Do councils would be appropriate.