기초자치 선거에서의 정당공천에 관한 고찰 - 위헌 여부의 문제를 중심으로 -

Abstract

Ever since the reintroduction of the elections for local governance councils in 1991, one of the hottest controversies has been the participation of political parties in those local elections. In the absence of express constitutional provisions, the National Assembly enacted relevant election laws reflecting the controversy, and subsequently revised the laws several times due to more political compromise and concession. The controversies surrounding the issue have been more intensified when the Constitutional Court involved in the matter, and pronounced conflicting views. In its 1999 decision, the Court indorsed the challenged provisions of the Public Office Election Law which prohibited the announcement of political party affiliation by the candidates for basic unit councils. The Constitutional Court acknowledged that such restriction was necessary and valid to accomplish proper responsiveness and an independence from political pressure. The Court, however, reversed its own decision a few years later without apparent legal or political justification. In 2003, the Court held that the challenged provision of the election law overly infringed the candidates' freedom of expression, which was a fundamental political freedom protected by the Constitution. In order to resolve the clashing views on this sensitive issue, the author examines the basic principals of the Korean constitution with respect to local autonomy. While critically analyzing the theories and perspectives of leading Korean scholars on the matter, the paper tries to distinguish the unique characteristics of local autonomy from those of national politics. It also provides a comparative analysis from other countries including the United States and Japan. The paper, after an in-depth discussion on the two conflicting decisions mentioned above, proposes some solutions. The analyses and discussions in the paper lead to a conclusion supporting the legal restrictions on the participation or control of political parties especially in the local elections for governors and council members of basic unit governments. Such restrictions, the author believes, are necessary under the current sociocultural circumstances, and may be justified under the objectives of local autonomy.