[26-1(B) KCCR 223, 2012Hun-Ma287, April 24, 2014]

In this case, the Court decided that the following provisions did not violate the fundamental rights of those under 19 years old: ① Article 16 Section 2 of the former Public Official Election Act (amended by Act No. 11071, Nov. 7, 2011 and later amended by Act No. 12267, Jan. 17, 2014) granting nationals aged 19 or over the right to vote in elections of local council members and the head of the local government in the district, ② Article 16 Section 2 of the Public Official Election Act (enacted as Act No. 4739, Mar. 16, 1994) and Article 16 Section 3 of the Act (enacted as Act No. 9466, Feb. 12, 2009) providing that nationals who are 25 years of age and older shall be eligible for election as a member of the National Assembly, relevant local council member and the head of the local government, ③ sub-paragraph 2 of Article 60 Section 1 of the Public Official Election Act (amended by Act. 7681, Aug. 4, 2005) preventing minors aged 19 or under from engaging in election campaigns and ④ the part concerning Article 15 Section 1 of the Public Official Election Act of Article 22 Section 1 of the Political Parties Act (wholly amended by Act No. 7683, Aug. 4, 2005) allowing only those who have the right to elect members of the National Assembly to become either the promoter or a member of a political party.

Background of the Case

(1) The complainants, when it became foreseeable that they would be unable to exercise their right to vote in the 19th National Assembly elections on April 11, 2012 as they were under the age of 19, filed a complaint in this case on March 22 and August 31, 2012, asserting that the following provisions infringe on their rights including the right to

vote, electoral eligibility, freedom of election campaign and freedom of political parties:

①Article 15 Section 1 of the former Public Official Election Act granting voting rights to nationals aged 19 or above (hereinafter the “Parliamentary Voting Rights Provision”), ② Article 15 Section 2 of the same Act (hereinafter the “Local Council Voting Rights Provision”), ③ Article 16 Section 2 of the current Public Official Election Act stipulating that nationals who are 25 years or older shall be eligible for election as a member of the National Assembly, relevant local council member and the head of the local government (hereinafter the “National Assembly Electoral Eligibility Provision”), ④ Article 16 Section 3 of thesame Act (hereinafter the “Local Council Electoral Eligibility Provision”),⑤ sub-paragraph 2 of Article 60 Section 1 of the Public Official Election Act (amended by Act. 7681, Aug. 4, 2005) preventing minors who are aged 19 or under from engaging in election campaigns (hereinafter the “Restriction of Election Campaign Provision”), ⑥ the portion of Article 5 Section 1 of the Residents Voting Act which grants residents’ voting right to residents who are 19 years of age or older (hereinafter the “Residents Voting Right Provision”), ⑦ Article 15 Section 1 of the Local Autonomy Act requiring residents aged at least 19 years to request the enactment, revision or abolition of Municipal Ordinances (hereinafter the “Right to Enactment, Revision or Abolition of Municipal Ordinances Provision”) and ⑧ Article 22 Section 1 of the Political Parties Act requiring only those who have the right to elect members of the National Assembly to be eligible for a promoter or a member of a political party (hereinafter the “Party Member Qualification Provision”).

Subject Matter of Review

The matter under review in this case is whether the following provisions infringe on the fundamental rights of the complainants: Parliamentary Voting Rights Provision, Local Council Voting Rights

Provision, National Assembly Electoral Eligibility Provision, Local Council Electoral Eligibility Provision, Restriction of Election Campaign Provision, Residents Voting Right Provision, Right to Enactment, Revision or Abolition of Municipal Ordinances Provision and Party Member Qualification Provision, which are set out below:

Former Public Official Election Act (amended by Act No. 11071, Nov. 7, 2011 and later amended by Act No. 12267, Jan. 17, 2014)

Article 15 (Voting Right)

(1) A national of 19 years of age or above shall have a voting right for the elections of the President and the members of the National Assembly: Provided, That a voting right in the elections of National Assembly members of local constituencies shall only be granted to a national of 19 years of age or above who falls under any of the following subparagraphs, as of the basis date of preparation of the electoral register pursuant to Article 37 (1):

1. A person whose resident registration has been made in the relevant local constituency for the National Assembly;

2. A person whose residence is within the election district of the relevant local constituency for the National Assembly and who has been enrolled in the report register of domestic domicile thereof for not less than three months pursuant to Article 6 (1) of the Act on the Immigration and Legal Status of Overseas Koreans.

(2) Any person of 19 years of age or above who falls under any of the following subparagraphs as of the basis date of preparation of the electoral register under Article 37 (1) shall have a right to vote in the elections of local council members and the head of the local government in the district:

1. Any person whose resident registration is made in the district under the jurisdiction of the relevant local government;

2. Any national who has been enrolled for not less than three months in the register of persons reporting their domestic domiciles of the relevant local government (hereafter referred to as the “register of

persons reporting their domestic domiciles” in this CHAPTER) pursuant to Article 6 (1) of the Act on the Immigration and Legal Status of Overseas Koreans; and

3. Any person who is enrolled in the register of foreigners of the relevant local government pursuant to Article 34 of the Immigration Control Act as a foreigner for whom three years have passed after the acquisition date of qualification for permanent residence under Article 10 of the same Act.

Public Official Election Act (enacted as Act No. 4739, Mar. 16, 1994)

Article 16 (Electoral Eligibility)

(2)A national of 25 years of age or above shall be eligible for election as a member of the National Assembly.

Public Official Election Act (amended by Act No. 9466, Feb. 12, 2009)

Article 16 (Electoral Eligibility)

(3) A national who is aged 25 years or above and who has registered as a resident (including cases where he/she is enrolled in the register of persons reporting their domestic domiciles; hereafter the same shall apply in this Article) in the district under the jurisdiction of the local government concerned for 60 consecutive days or longer (from the record date of the electoral register up to the election day consecutively, in cases of any person who had been sent to a foreign country in public services and has returned to the Republic of Korea after 60 days before the election day) as of the election day shall be eligible for election for the relevant local council member and the head of the local government. In such cases, a period of 60 days shall not be interrupted by establishment, abolition, division, or merger of the local government, or change in the boundary of a district (including a change of district under any subparagraph of Article 28).

Public Official Election Act (amended by Act No. 7681, Aug. 4,

2005)

Article 60 (Persons Barred from Election Campaign)

(1) A person who falls under any one of the following subparagraphs shall not engage in an election campaign (proviso omitted);

2. A minor (referring to a person aged 19 or under 19; hereinafter the same shall apply);

Residents Voting Act (amended by Act No. 9468, Feb. 12, 2009)

Article 5 (Residents’ Voting Rights)

(1) Those who fall under any of the following subparagraphs as of the base date of preparation of a list of voters pursuant to Article 6 (1) among residents over 19 years old shall have the residents’ voting right : Provided, That those who have no suffrage pursuant to Article 18 of the Public Official Election Act have no residents’ voting right:

1. A person who has resident registration in a district over which the local government has jurisdiction or an oversea Korean who has reported a domicile in the Republic of Korea pursuant to Article 6 of the Act on the Immigration and Legal Status of Overseas Koreans;

2.A foreigner who is qualified for continuous residence in the Republic of Korea (including cases where he/she is qualified for continuous residence by permission for change of qualifications for staying or permission for extension of the period for staying) pursuant to Acts and subordinate statutes related to immigration control, and who is prescribed by municipal ordinance of a local government.

Local Autonomy Act (amended by Act No. 9577, Apr. 1, 2009)

Article 15 (Request for Enactment, Revision or Abolition of Municipal Ordinance)

(1) Residents of 19 years of age or older falling under any of the following subparagraphs (those who have no suffrage pursuant to Article 18 of the Public Official Election Act shall be excluded; hereafter referred to as the “residents of 19 years of age or older” in this Article and Article 16) may request the enactment, revision or abolition of

Municipal Ordinances under the joint signatures of not less than the number of residents of 19 years of age or older prescribed by Municipal Ordinance of the relevant local government within the extent between 1/100 or more and 1/70 or fewer of the total number of the residents of 19 years of age or older for the City/Do and a large city with 500,000 or more residents pursuant to Article 175, or within the extent between 1/50 or more and 1/20 or fewer of the total number of the residents of 19 years of age or older for the Si/Gun/autonomous Gu, from the head of the competent local government.

1. A person registered as a resident in the area of jurisdiction of the relevant local government;

2.A person listed in the registry of persons having reported their Korean address of the relevant local government as referred to in Article 6 (1) of the Act on the Immigration and Legal Status of Overseas Koreans;

3.A person listed in the registry of foreigners of the relevant local government under Article 34 of the Immigration Control Act, as a foreigner for whom three years have passed since the date when he/she was granted the right of permanent residence under Article 10 of the same Act.

Political Parties Act (Wholly amended by Act No. 7683, Aug. 4, 2005)

Article 22 (Promoters’ and Party Members’ Qualifications)

(1)Whoever who has the right to elect members of the National Assembly may become either the promoter or a member of a political party, notwithstanding the provisions of other Acts and subordinate statutes that prohibit them from joining any particular political party or being involved in political activities by reason of their being public officials or their holding other relevant social positions. (proviso omitted)

Summary of the Decision

1. Conditions of Admissibility

Regarding the claims concerning the Parliamentary Voting Rights Provision and the Local Council Voting Rights Provision, there is no possibility for remedies since the complainants will be entitled to vote in the next elections for National Assembly members and the President, and constitutional judgment on these claims has already been made in case2012Hun-Ma174, which makes the complaint on these claims inadmissible.As to the claims concerning the Residents Voting Right Provision and the Right to Enactment, Revision or Abolition of Municipal Ordinances Provision, the residents’ voting rights or the right to enact, revise or abolish municipal ordinances are hardly considered as constitutionalfundamental rights and so the provisions cannot infringe on the complainants’fundamental rights. The claims on these provisions, therefore, are also inadmissible. As complainant Jung ○-Hwan reaches the age of 19 or older and becomes entitled to vote as of the day of local council and government elections, Mr. Jung’s claim on the Local Council Voting Rights Provision fails to meet the self-relatedness requirement for the provision to constitute a violation of fundamental rights and is thus inadmissible.

2. Review on Merits

A. Local Council Voting Rights Provision

The exercise of voting rights should be preconditioned on a certain level of ability to make political judgments, and legislators have set the minimum voting age for local council member elections, etc. at 19 on grounds that given our reality, political, social views of minors under the age of 19 are still in the making and that they are not yet fully equipped with mental and physical abilities to make independent political

judgments. Additionally, although a number of countries have minimum voting age of 18 years, this is a matter to be decided by taking into account the particular circumstances of each country, and the legal minimum age for voting need not be the same as the minimum working or military service age of 18 years as provided in other laws. Therefore, it is not without reason to have the minimum voting age of 19. Accordingly, legislators did not exceed their lawmaking authority in deciding the voting age to be 19 in elections for local council members,etc., and thus did not violate the voting rights of those under the age of 19.

B.National Assembly and Local Council Electoral Eligibility Provisions

According to Article 25 and Article 118 Section 2 of the Constitution, legislators may consider factors such as the significance and function of elections as well as the status and duties of candidates in deciding the minimum age for being eligible to be elected as National Assembly members, local council members and heads of local governments. In this context, legislators’ decision to set 25 as the minimum age of electoral eligibility, which factored in the ability required of an elected representative such as a National Assembly member, the minimum period of education curricula, etc. required to develop such ability, expectations and demands from the public for an elected public official to fulfill his or her obligation to pay taxes and perform military service, and legislation of other countries that generally have higher age requirements for electoral eligibility than for voting, is reasonable and is within their legislative discretion. Therefore, the provisions on the eligibility for election as members of the National Assembly and local councils do not violate the right of complainants under the age of 25 to hold public office.

C. Restriction of Election Campaign Provision

The Restriction of Election Campaign Provision prohibits minors from engaging in election campaigns, which is founded on a legitimate legislative purpose to ensure fairness of election by restricting the freedom of election campaigning of those lacking the ability to make political judgments, and using the age criteria in determining whether or not a person is equipped with the ability to make political decisions is an appropriate means to achieve the goal. In addition, the provision only restricts election campaigning whereas other acts of political expression are permitted without limits; this restriction is merely a delay of freedom to engage in election campaigns until people turn 19 years old; and minors lack mental or physical autonomy. All these considered, the provision meets the least restrictive means requirement and also strikes the balance of interests as the extent of restriction on political expression is not greater than the public interest brought by fair election. For this reason, it does not violate the freedom of complainants under the age of 19 to engage in election campaigns.

D. Party Member Qualification Provision

The Party Member Qualification Provision stipulates that anyone who has the right to elect National Assembly members can become either the promoter or a member of a political party, so those who are under the age of 19 cannot be promoters or members of a political party under the Public Official Election Act that gives voting rights only to those aged 19 years old or over. This provision prevents those with insufficient ability to make political judgments from becoming promoters or members of a political party and thereby protects the functions of a political party as provided in the Constitution, so it serves legitimate purpose and offers an appropriate means. Given the importance of a political party’s public function, it is difficult to achieve the legislative purpose solely by limiting the freedom of founding political parties or a

certain form of political party activities. In fact, the provision satisfies the least restrictive means requirement given that it is only the political parties and no other association of general character that are banned; the intention of the provision is to suspend the exercise of voting rights only until one reaches 19 years old; and that minors lack mental and physical autonomy and thus need politically correct education. The provision also achieves the balance of interests since the risk for individuals incapable of making political decisions to disrupt the functioning of a political party is more significant than the risk of denying those under the age of19 the freedom of political parties. Therefore, it cannot be said that the provision infringes on the complainants’ freedom of political party activities.

Dissenting Opinion of 3 Justices Regarding Provisions on the Rightto Vote for Local Council Members and Restriction of Election Campaigning

1. Local Council Voting Rights Provision

If a person of a certain age is capable of making political judgments but the minimum age for voting was set at a higher age, this requirement exceeds the limits of legislative discretion. The Korean society has undergone a tremendous change since the minimum voting age was adjusted to 19 years and older, and the level of political awareness of people including adolescents has grown considerably, which means those at the age of having completed secondary education should be considered as possessing the ability to make independent political decisions. However, those aged between 18 and 19 who are to complete secondary education, including third graders of high school, tend to have great interest in issues of employment or education, and, therefore, their political and social judgments grow in maturity. Other laws such as the Military Service Act also recognize that people who are 18 years or older have reached the level of mental and physical ability to participate

in the shaping of society and nation, and it cannot be reasoned that18 year-old Korean nationals who are highly adaptive to new lifestyles and sensitive to social changes have lower ability to make political decisions than those of the same age in other countries where minimum voting age is 18. For this reason, the Local Council Voting Rights Provision that requires voters to be at least 19 years old even if those aged 18 or above are capable of making their own political decisions exceeds the power to legislate and violates the voting rights, etc. of those who are between 18 years or older and under 19 years old.

2. Restriction of Election Campaign Provision

The Restriction of Election Campaign Provision denies minors the right to engage in election campaigns, and it should be viewed that, as in the decision regarding the voting right provisions which cited the increase in political awareness driven by social change, particularly those between the age of 18 and 19 who are to complete secondary education have the ability to make their own political and social judgments as such ability has significantly matured by their great interest in employment or education and IT development. In addition, the minimum age for voting and election campaigning need not necessarily be the same, and it can be concluded that those aged 18 and over who should have completed secondary education given our social and educational environment are capable of showing their political will in elections. In this context, giving only those who are at least 19 years old the right to engage in election campaigns amounts to an excessive restriction that fails to satisfy the least restrictive means requirement. Furthermore, it also fails to balance the interests concerned in that it is doubted how much fairer the elections can be by denying those aged between 18 and over and 19 who possess political judgment capabilities the freedom to engage in election campaigns. Therefore, the Restriction of Election Campaign Provision infringes on the freedom of election campaigning of those who are between 18 years or over and under 19 years old.

Dissenting Opinion of 2 Justices on the Party Member Qualification Provision

A political party is a private association by legal nature; the state, in principle, must not intervene in deciding the qualification of party members and may restrict the freedom of parties only when necessary. However, the Party Member Qualification Provision demands excessive ability from party members on the ground that a member of a political party as private association needs political judgment capability equal to that required in exercising the right to vote as a means of participating in state affairs, and bans those under the age of 19 from engaging in all kinds of activities as a party member for the purpose of safeguarding the constitutional function of a political party when this purpose can be served just by restricting only a certain form of freedom. The Party Member Qualification Provision, therefore, fails to meet the least restrictive means requirement. It also fails to strike the balance of interests as it is uncertain how much the restriction of political party activities imposed to people under 19 will contribute to achieving the legislative purpose of the provision. Therefore, it violates the freedom of those under 19 to engage in political parties.

Dissenting Opinion of 1 Justice on the Party Member Qualification Provision

A political party cannot simply be seen as a private association given its important public role, and qualification of political party members is not something that can be left to the party to decide on its own. Yet, the Party Member Qualification Provision violates the rule against excessive restriction and therefore the fundamental rights as well.

Although legislators believe that people under the age of 19 do not have the ability to make political decisions required of a political party

member, the risk of disrupting the public function of a political party can be prevented just by restricting certain forms of freedom. Hence, banning those aged between 18 or over and under 19 from engaging in all kinds of activities as a party member is against the least restrictive rule. Those between 18 and over and 19 are considered to be capable of making political judgments, and it is to be questioned whether keeping them from establishing and joining political parties will be effective in achieving the legislative purpose to protect constitutional functions of a political party. Thus, the Party Member Qualification Provision fails to strike the balance of interests and, consequently, violates the freedom of political party activities of those between 18 years and older and less than 19 years old.

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