[13-2 KCCR 77, 2000Hun-Ma91, 2000Hun-Ma112, 2000Hun-Ma134 (consolidated), July 19, 2001]

Contents of the Decision

1. Whether Article 56(1)[2] of the Act on the Election of PublicOfficials and the Prevention of Election Malpractices (hereinaftercalled the "Public Election Act"), requiring a candidate for theNational Assembly election to make a deposit of 20 million wonwhen submitting the application for candidate registration, is con-stitutional.

2. Whether Article 57(1) and Article 57(2) providing grounds for the return and forfeiture of election deposits is constitutional.

3. Whether the present election system allocating seats for propor-tional representatives in the National Assembly and allowing only one vote per voter is constitutional.

4. Decision of unconstitutionality rendered on ancillary provisionsrelated to the provisions on review.

Summary of the Decision

1. The amount of deposit required for public elections shall re- main at a minimum level, great enough to prevent insincere appli-cants' candidate registration, and it should not be so excessive asto restrict the right to hold public office of people who are seriousabout running for election. Article 56(1)[2] requires a candidate forthe National Assembly election to make a deposit of 20 million wonwhen submitting an application for candidate registration. Thedeposit requirement of 20 million won is excessive considering theeconomic conditions of average citizens. The requirement of suchan excessive deposit money will prohibit potential candidates, whoqualify for the office in all other aspects, from running for office onlyfor the reason that he or she cannot raise the deposit money. Thiswould ultimately prevent candidates representing the poor and theyounger generations from taking office in the National Assembly. Bycontrast, in the case of wealthy people to whom 20 million won is not a significant amount, this deposit requirement will not be ableto serve its legislative purpose, namely, to prevent registration ofinsincere candidates. In sum, the present requirement of depositing20 million won when registering for the National Assembly electiondoes not bring about the desired effect of preventing insincere can- didates from running for office in a fair and suitable manner, but itforces many potential candidates who are sincere about running foroffice to give up candidate registration. Therefore, the instant stat-utory provision violates the right of equality and the right of po-tential candidates to hold public office, and it violates the voters'freedom of choice.

2. An election is a process through which citizens express their diverse political opinions. It follows that an unsuccessful candidateshould not be labeled "insincere" and made subject to legal sanctionsbased on election result alone. So if the number of votes obtained is to be used as a criterion to determine whether to return the can- didacy deposit, the minimum number of votes to be obtained should be a small fraction of the total number of valid votes. Article 57(1)and Article 57(2) mandate the forfeiture of candidacy deposit whenthe number of votes obtained by a candidate is less than the numbergiven by dividing the total valid votes by the number of candidates, or is less than 20/100 of the total valid votes. Such requirement ofvotes

for the deposit refund is too great to invite a serious would becandidate's participation in the National Assembly election, and ineffect, it improperly penalizes an unsuccessful but sincere candidatebased on the election result. When there are two or three majorpolitical parties, it would be very difficult for candidates from smallerpolitical parties or newly organized political parties to meet such arequirement. Thus, the instant provisions discourage and excessivelyrestrict the participation of these individuals in political affairs,thereby infringing on their right to hold public office through elec-tions.

3. (1) The Public Election Act permits only one vote for eachvoter, (Article 146(2)), and does not allow an independent vote forthe political party of one's choice. Article 189(1) of the Act statesthat the allocation of seats for proportional representatives will beproportional to the sum of votes obtained by all candidates of aparticular political party in the nationwide district elections, therebyassuming that the voter's choice of a candidate is in accordance withhis or her support for a particular political party. Under the presentproportional representative system, when an elector supports eithera candidate or a political party, but not both, half of the value ofhis or her vote is either misused or wasted whether he or she votesfor his or her favorite candidate or for the political party of his orher choice. Also, the current system cannot accurately reflect supportfor the newly formed political party, and is inherently prejudiced infavor of the existing major parties by allocating seats that exceedthe actual support for them. This is contrary to democratic prin-ciples which call for the accurate reflection of people's opinions and guarantee people's freedom of choice in public elections.

(2) The principle of direct election applied to the proportionalrepresentative system requires that elections of proportional repre-sentatives, as well as the acquisition of the number of seats of pro-portional representatives of a particular political party, be decided bythe result of the direct election. Since the election of proportionalrepresentatives in the National Assembly and the election of districtassemblyperson are two different elections, the voter should be al- lowed to cast two separate ballots, one for his or her favorite can-didate in the electoral district and the other for the political party ofhis or her choice. The present election system, however, only allowsone vote for the candidate in the electoral district, and does notallow a separate vote for the slate of party nominees for seats ofproportional representatives. This means that nomination by the pol-itical party has the final and decisive effect in electing the propor-tional representatives to the National Assembly, and voters cannotexert a direct and conclusive influence in the election of the propor-tional representatives. This is contrary to the principle of directelection.

(3) Under the present election system allowing one vote per per-son and adopting the seat allocation for proportional representativesin the National Assembly, when a person votes for a party nominee in the electoral district, his or her vote contributes to the election ofthe district member of the National Assembly as well as to the allo-cation of seats for the proportional representatives. On the otherhand, a vote for an independent in the electoral district is onlycounted for the election of the district Assembly member, and has no value in the allocation of seats for proportional representatives.Hence, there arises the problem of inequality in the value of a vote. When a person votes for an independent because the party of one's choice did not nominate a candidate in the electoral district, he orshe is forced to suffer inequality in the value of his or her vote.This is unreasonable discrimination of voters who support indepen- dent candidates, and it violates the principle of equality in election.

(4) Article 189(1) of the Public Election Act is unconstitutionalbecause of the above reasons. Article 146(2) stating "one personshall be entitled to one vote" is unconstitutional as long as a sepa-rate vote for a political party is not allowed, while the election sys-tem implements both the majority representation system and the pro-

portional representation system based on party nomination. The basicrights in violation are the right to vote for proportional representa-tives and the right of equality of people voting for independentcandidates.

4. If Article 189(1) of the Constitution providing the foundationfor the allocation of seats for proportional representatives in theNational Assembly is unconstitutional, independent existence of ancil-lary provisions to Article 189(1), namely, Article 189(2), (3), (4), (5), (6) and (7), will be meaningless. Although these provisions are notprovisions on review, it would be proper to declare them unconsti-tutional to achieve legal clarity, and the Court hereby declares them unconstitutional.

Justice Kwon Seong's Concurring Opinion

3. Under the current election system allowing one vote per per-son, if the candidate of one's choice is not from the political partythat he or she supports, the voter is forced to forsake his or hersupport for either the candidate or the party in the particular election.This is tantamount to forcing individual voters to cast a ballot for apolitical party that he or she does not support or a candidate that he or she does not favor. In some instances, it would be difficultto decide whether to cast a ballot for the candidate of his choice or for the party he supports, and the voter may choose not to vote atall. This excessively restricts the freedom to form an opinion or thefreedom of choice, thereby encroaching on the right to exercise thefreedom of choice in public election and violating the principle offree election.

Provisions on Review

Act on the Election of Public Officials and the Pre-vention of Election Malpractices

Article 56 (Deposit Money)

(1) A person who applies for candidate registration shall pay thefollowing deposit money, per candidate, to the competent constituencyelection commission at the time of the application for registration,pursuant to the National Election Commission Regulations:

1. [omitted];

2. 20 million won, in the case of an election of a NationalAssembly member;

3. - 6. [omitted]

(2) - (3) [omitted]

Article 57 (Return, etc. of Deposit Money)

(1) Where a political party or candidate falls under any of thefollowing subparagraphs or a candidate (excluding candidates for theseats of proportional representatives in the National Assembly andfor proportional representatives in the City/Province council) is electedor is deceased, an amount of money left after the expenses bornewith the deposit money as provided in Article 56(3) are subtractedfrom the deposit money and shall be returned to the depositor within30 days after the election day.

1. In cases where the number of votes obtained by a candidateis not less than the number given by dividing the total validvotes by the number of candidates or is 20/100 or more of thetotal valid votes, in the presidential election, the election oflocal council members and that of the head of a local govern- ment;

2. - 3. [omitted]

(2) Where no candidate on the list for the proportional repre- sentatives in the

National Assembly or for the proportional repre- sentatives in the City/Province council is elected, or the candidate(excluding candidates for the seats of proportional representatives inthe National Assembly and for proportional representatives in theCity/Province council) resigns or his registration becomes nullified,or the number of votes obtained is short of what is provided inparagraph (1) 1, the amount that remains after the expenses to beborne with the deposit money as provided in Article 56(3), are sub- tracted from the deposit money and shall be reverted to the State orthe local government concerned within 30 days from the election day.In this case, if the expenses to be borne with the deposit money asprovided in Article 56(3) exceed the deposit money, the depositorshall pay the amount in excess to the constituency election commis-sion within 10 days from being notified thereof, in accordance withnotification of the constituency election commission concerned, andif he fails to make payment within the provided period, the State or the local government concerned shall disburse the amount first, andshall entrust the chief of the competent tax office with the collec- tion thereof, and have the chief collect the amount according to anexample set out in the disposition on national tax in arrears and paythe collected amount to the State or the local government concerned.

(3) - (5) [omitted]

Article 189 (Allocation of Seats of Proportional Representatives inthe National Assembly and Decision, Announcement and Notification of Elected Persons)

(1) In the election for a proportional representative in the Na-tional Assembly, the National Election Commission shall allocate theseats of the proportional representative National Assembly to eachpolitical party which has obtained five or more seats in the generalelection for the district National Assembly members or upward of5/100 of the total valid votes [including the valid votes of the localconstituency for the National Assembly member where no person iselected as provided in the latter part of Article 188(4)] (excluding the political party which fails to submit the list of candidates forthe proportional representatives in the National Assembly; hereafterreferred to in this article as the "seat-allocated party"), in proportionof the votes obtained in the general election for the district NationalAssembly members: Provided, That one seat of the proportionalrepresentative in the National Assembly shall be allocated to each political party which has obtained more than 3/100 and fewer than5/100 of the total valid votes in the general election for the district National Assembly members.

(2) The percentage of votes obtained as provided in paragraph (1)shall be calculated by dividing the number of votes obtained by eachseat-allocated party (including the number of votes obtained in thelocal constituencies for the National Assembly where no person iselected as provided in the latter part of Article 188(4); hereinafter,the same shall apply in this paragraph and paragraph (4)) by the sumof votes obtained by all seat-allocated parties in the general election for the district National Assembly members, and by rounding off the number to five decimal places.

(3) The seats of the proportional representatives in the NationalAssembly shall be allocated to each political party by the integralnumber of seats calculated by multiplying the percentage of votesobtained by each political party, as provided in paragraph (2), by thenumber obtained by deducting the number of seats allocated as pro-vided in the provision of paragraph (1) from the full number of seatsof the proportional representative in the National Assembly, andthereafter the remaining seats, if any, shall be allocated one by oneto each political party in the descending order of resulting fractions.

(4) In the case of paragraph (3), where there are equal fractions,the seat shall be allocated to the political party which has obtainedmore votes, and where the number of votes obtained is equal, then theseat shall be allocated by lot among the political parties

concerned.

(5) If the number of the seats for the proportional representativein the National Assembly allocated to a political party exceeds thenumber of candidates for the proportional representative in theNational Assembly nominated by the party, the seats in excess shall be left vacant.

(6) The National Election Commission shall assign the electedpersons to the seats for the proportional representative in the Na-tional Assembly allocated to the political party in accordance withthe order on the submitted list of candidates for the proportionalrepresentative in the National Assembly.

(7) Where the election in all the local constituencies for theNational Assembly is not completed due to a cause as provided insubparagraph 1 and the beginning part of subparagraph 2 of Article195 [excluding the case as provided in the latter part of Article188(4)], Article 196 or 198, the National Election Commission shalldeduct from the full number of seats of the proportional representa- tive in the National Assembly the integral number obtained by mul-tiplying by the full number of seats of the proportional representa-tives in the National Assembly the quotient obtained by dividing thenumber of electors in the local constituency for the National As-sembly where the election is not closed by the number of electors inthe whole country [excluding the number of electors in the localconstituency for the National Assembly where no voting is held asprovided in Article 188(2) and (3)], and then allocate the seats ofthe proportional representative in the National Assembly as providedin paragraphs (1) through (6), and assign the elected persons:Provided, political parties excluded from the allocation of seats forthe proportional representatives in the National Assembly, as providedin paragraph (1), are added to the list of the seat-allocated politicalparties if it is anticipated that these parties will meet the require- ment for seat allocation for proportional representatives in the Na-tional Assembly based on the election result in the local constituen-cies where the election is not yet completed, and the integral numbercorresponding to 5/100 of the full number of the proportional repre-sentatives in the National Assembly shall be deducted for each poli- tical party to be added to the list of seat-allocated parties thus.

(8) - (9) [omitted]

Article 146 (Method of Election)

(1) [omitted]

(2) A vote shall be made in person or by mail, and one personshall be entitled to one vote.

(3) [omitted]

Related Provisions

The Constitution

Articles 41(1), (3)

Act on the Election of Public Officials and the Preven-tion of Election Malpractices

Article 47 (Nomination of Candidates by Political Parties)

(1) [omitted]

(2) A political party, when nominating a candidate as providedin paragraph (1), shall observe the democratic procedure as provided in Article 31 of the Political Parties

Act.

Political Parties Act

Article 31 (Nomination of Candidates for Elective Public Office)

(1) The nomination of candidates for any elective public officeby a political party shall be democratic.

(2) A political party shall nominate candidates for public office insuch a manner that the intention of the representative organ of the party having the jurisdiction over the election district of the public office, which nominates the candidates, is reflected, and a concreteprocedure shall be determined by the party constitution.

(3) Only those members of the political party who pay the party expenses or serve voluntarily without pay in the respective level ofparty departments as prescribed by the party constitution shall beenfranchised for the candidates of public office of the relevant party or the party executives.

(4) At least 30/100 of total candidates recommended by politicalparties for the seats of proportional representatives in the NationalAssembly and for proportional representatives in the City/Provincecouncil shall be females.

Related Precedents

1. 1 KCCR 199, 88Hun-Ka6, September 8, 1989

3. 7-2 KCCR 760, 771, 95Hun-Ma224 and etc., December 27, 1995

4. 1 KCCR 329, 89Hun-Ka102, November 20, 1989

3 KCCR 569, 91Hun-Ka6, November 25, 1991

8-2 KCCR 808, 94Hun-Ba1, December 26, 1996

Parties

Complainants

1. Chang Ki-pyo and 3 others (2000Hun-Ma91)

Counsel: Legal Corporation Joongwon

Attorney-in-charge: Lim Ho

2. Organizing Committee for the Democratic Labor Party

Representative: Kwon Young-gil and 2 others (2000Hun-Ma112)

Counsel

(1) Legal Corporation Changjo

Attorney-in-charge: Lee Ki-wook and 5 others

(2) Legal Corporation Simin-Jonghap

Attorney-in-charge: Ko Young-ku and 6 others

(3) Legal Corporation Ansan-Jonghap

Attorney-in-charge: Park Se-kyoung and 4 others

3. Lee Moon-ja and 28 others (2000Hun-Ma134)

Counsel: Yoo Sun-ho and 4 others

Holding

1. Provisions regarding the elections of the National Assemblymembers from electoral districts in Article 56(1)[2] and Article57(1)[1] of the Public Election Act and the provision of Article 57(2)regarding the forfeiture of candidate deposit money

when votes earn-ed is less than the number given by Article 57(1)[1], and provisions of Article 189(1) - (7) are unconstitutional.

2. Article 146(2) stating "one person shall be entitled to onevote" is unconstitutional as long as a separate vote for a politicalparty is not allowed, while the election system implements both themajority representation system and the proportional representationsystem based on party nomination.

Reasoning

1. Overview of the Case and the Subject Matter of Review

A. Overview of the Case

(1) 2000Hun-Ma91

Complainants are members of the so-called "Citizens' Coalition for Clean Politics" and are promoters of a new political party. On February 10, 2000, the complainants filed a constitutional complaint against Article 146(2) of the Public Election Act allowing one voteper person in the election of public officials, alleging that the statu-tory provision infringes on their basic rights, namely, the right tovote, the right to be elected into the public office, and the right to equality.

(2) 2000Hun-Ma112

Complainant Shin Jang-sik is a voter who plans to participate inthe National Assembly election on April 13, 2000. Complainant LeeSang-hyun is a voter and plans to run for the National Assemblyfrom the district of Nowon-Ku, Seoul. Complainant the OrganizingCommittee for the Democratic Labor Party is a group planning toform the Democratic Labor Party and nominate members for theNational Assembly election. The complainants filed a constitutionalcomplaint against Article 56, Article 57, and Article 189 of the PublicElection Act, alleging that the statutory provisions violate theirconstitutional rights, namely, the right to equality and the right tobe elected into public office.

(3) 2000Hun-Ma134

Complainants Lee Moon-ja and 25 others are voters who plan toparticipate in the National Assembly election on April 13, 2000.Complainants Yoo Jae-geun and Cho Soon-hyung are assemblypersonsfrom the Millennium Democratic Party and are nominated by theParty as candidates for the National Assembly election. ComplainantKim Han-gil is a member of the Millennium Democratic Party, andis to be nominated as a candidate for proportional representative inthe National Assembly. On February 22, 2000, the complainants fileda constitutional complaint against Article 189 of the Public ElectionAct, alleging that the statutory provision violates their constitutionalrights, namely, the right to vote and the right to be elected intopublic office.

B. Subject Matter of Review

As will be seen later, the complainants do not contest the con-stitutionality of all provisions in Article 56, Article 57, and Article189 of the Public Election Act, but only challenge the constitutional- ity of Article 56(1)[2], the part of Article 57(1)[1] about the electionof district Assembly member, the part of Article 57(2) regarding

forfeiture of candidate deposit money when a number of votes earnedby the candidate is less than the number given by Article 57(1)[1], and Article 189(1). In case of Article 146(2) of the Act, the com-plainants only challenge the constitutionality of the statutory provisionstating "one person shall be entitled to one vote" when applied to theNational Assembly election. Then the subject matters of review inthis case will be whether the specific parts of the aforementionedstatutory provisions in the Act infringe on the basic rights protectedby the Constitution. The provisions on review and related provisionsare as follows:

Act on the Election of Public Officials and the Prevention ofElection Malpractices

Article 56 (Deposit Money)

(1) A person who applies for candidate registration shall pay thefollowing deposit money, per candidate, to the competent constituencyelection commission at the time of the application for registration,pursuant to the National Election Commission Regulations:

2. 20 million won, in the case of an election of a NationalAssembly member;

Article 57 (Return, etc. of Deposit Money)

(1) Where a political party or candidate falls under any of thefollowing subparagraphs or a candidate (excluding a candidate for theproportional representative National Assembly and for the proportionalrepresentative City/Province council) is elected or is deceased, anamount of money left after the expenses borne with the depositmoney, as provided in Article 56(3), are subtracted from the depositmoney and shall be returned to the depositor within 30 days afterthe election day.

1. In case where the number of votes obtained by a candi-date is not less than the number given by dividing the totalvalid votes by the number of candidates or is 20/100 or moreof the total valid votes, in the presidential election, the electionof local council members and that of the head of a local gov- ernment;

(2) Where no candidate on the list for the proportional repre-sentative National Assembly or for the proportional representativeCity/Province council is elected, or the candidate (excluding the can-didates for the proportional representative National Assembly and forthe proportional representative City/Province council) resigns, or hisregistration becomes nullified, or the number of votes obtained isshort of what is provided in paragraph (1) [1], the amount that re-mains after the expenses to be borne, with the deposit money asprovided in Article 56(3), are subtracted from the deposit money andshall be reverted to the State or the local government concernedwithin 30 days from the election day. In this case, if the expensesto be borne with the deposit money, as provided in Article 56(3),exceed the deposit money, the depositor shall pay the amount inexcess to the constituency election commission within 10 days from being notified thereof, in accordance with notification of the consti-tuency election commission concerned, and if he fails to make pay- ment within the provided period, the State or the local governmentconcerned shall disburse the amount first, and shall entrust the chief of the competent tax office with the collection thereof and have thechief collect the amount according to an example set out in thedisposition on national tax in arrears and pay the collected amountto the State or the local government concerned.

Article 146 (Method of Election)

(2) A vote shall be made in person or by mail, and one personshall be entitled to one vote.

Article 189 (Allocation of Seats for the Proportional Representa-tive National Assembly and Decision, Announcement, and Notificationof Elected Persons)

(1) In the election for a proportional representative NationalAssembly seat, the National Election Commission shall allocate the seats of the proportional representative National Assembly to eachpolitical party which has obtained five or more seats in the generalelection for the local constituency National Assembly or upward of 5/100 of the total valid votes [including the valid votes of the localconstituency for the National Assembly where no person is elected asprovided in the latter part of Article 188(4)] (excluding the politicalparty which fails to submit the list of candidates for the proportionalrepresentative National Assembly; hereafter referred to in this articleas the "seat-allocated party"), in proportion of the votes obtained inthe general election for the local constituency National Assembly:Provided, That one seat for the proportional representative NationalAssembly shall be allocated to each political party which has obtainedmore than 3/100 and fewer than 5/100 of the total valid votes in the general election for the local constituency National Assembly.

(2) The percentage of votes obtained as provided in paragraph (1)shall be calculated by dividing the number of votes obtained by eachseat-allocated party (including the number of votes obtained in thelocal constituencies for the National Assembly where no person iselected as provided in the latter part of Article 188(4); hereinafter,the same shall apply in this paragraph and paragraph (4)) by the sumof votes obtained by all seat-allocated parties in the general electionfor the local constituency National Assembly, and by rounding off thenumber to five decimal places.

(3) The seats of the proportional representative National Assem-bly shall be allocated to each political party by the integral number ofseats calculated by multiplying the percentage of votes obtained byeach political party, as provided in paragraph (2), by the numberobtained by deducting the number of seats allocated as provided inthe provision of paragraph (1), from the full number of seats of theproportional representative National Assembly, and thereafter the re-maining seats, if any, shall be allocated one by one to each political party in the descending order of resulting fractions.

(4) In the case of paragraph (3), where there are equal fractions,the seat shall be allocated to the political party which has obtained more votes, and where the number of votes obtained is equal, thenthe seat shall be allocated by lot among the political parties con-cerned.

(5) If the number of the seats of the proportional representative National Assembly allocated to a political party exceeds the numberof candidates for the proportional representative National Assemblynominated by the party, the seats in excess shall be left vacant.

(6) The National Election Commission shall assign the electedpersons to the seats of the proportional representative National As-sembly allocated to the political party in accordance with the order onthe submitted list of candidates for the proportional representativeNational Assembly.

(7) Where the election in all the local constituencies for theNational Assembly is not completed due to a cause, as provided insubparagraph 1, and the beginning part of subparagraph 2 of Article195 [excluding the case as provided in the latter part of Article188(4)], Article 196 or 198, the National Election Commission shalldeduct from the full number of seats of the proportional representa-tive National Assembly the integral number obtained by multiplyingby the full number of seats of the proportional representative NationalAssembly the quotient obtained by dividing the number of electors inthe local constituency for the National Assembly where the electionis not closed by the number of electors in the whole country [exclud-ing the number of electors in the local constituency for the NationalAssembly members where no voting is held as provided in Article188(2) and (3)], and then allocate the seats of the proportional repre-sentative National Assembly, as provided in paragraphs (1)

through(6), and assign the elected persons: Provided, That where it is antic-ipated that some of the political parties excluded from the allocationof seats of the proportional representative National Assembly asprovided in paragraph (1), shall be added to the list of the seat-allocated political parties as a result of the election in the local con-stituencies where the election is not completed, the integral numbercorresponding to 5/100 of the full number of the proportional repre-sentative National Assembly seats shall be separately deducted foreach political party expected to be added.

2. Complainants' Arguments

A. 2000Hun-Ma91

(1) The proportional representation system requires seats for theproportional representatives in the National Assembly allocated ac-cording to the percentage of total valid votes that a particular partyobtained from all electoral districts in a general election. However,under the present election system of allowing one vote per person,adopted by the Public Election Act, each voter can only cast one bal-lot to express his or her support for the candidate in the electoraldistrict. While the voter may be unaware of the party nominees tothe seats of proportional representatives in the National Assembly, hisor her ballot is counted toward allocation of seat for a proportional representative for a particular party as he or she votes for a partynominee in the district election. Such a system cannot accuratelyreflect the political opinions of the populace, and it actively distortsthe public opinion. Thus, the present proportional representative sys-tem violates the citizens' freedom to choose their representatives(the right to vote).

(2) Complainants are members of the so-called "Citizens' Coalitionfor Clean Politics" which is organized to overcome the public dis-trust of parliamentary politics and to reflect diverse opinions of vari-ous social groups. The statutory provision of the Public ElectionAct permitting one vote per person in the election of public officials distorts the political opinions of the populace and hinders the newly formed political party from earning a seat in the National Assembly,thereby infringing on the complainants' basic rights, namely, theright to be elected into public office and the right to equality.

B. 2000Hun-Ma112

(1) Article 56(1)[2] of the Public Election Act amended onFebruary 16, 2000 did not repeal the statutory provision requiring ex-cessive deposit money of 10 million, but raised it to 20 million won.Such requirement of excessive deposit makes it extremely difficult, if not impossible, for potential candidates with ordinary means andprogressive tendencies, to run for any public election. Such discrimi-nation in terms of one's financial resources effectively takes awaypolitical opportunities from the have-nots. Article 57(1)[1] of thePublic Election Act mandates the forfeiture of deposit money whenthe number of votes obtained by a candidate is less than the numbergiven by dividing the total valid votes by the number of candidates,or is less than 20/100 of the total valid votes. Such high require- ment of votes for the deposit refund excessively restricts people'sparticipation in political affairs.

(2) According to Article 189(1) of the Public Election Act, a votercannot cast a ballot in support of a particular political party directly to contribute to the election of proportional representatives from theparty. Each voter's support for the party is assumed through hisor her vote for the candidate in the electoral district. Moreover, the seats for proportional representatives in the National Assembly allo- cated to a particular party are distributed to party nominees accord-ing to the order in the slate

of party nominees. Since ordinaryvoters do not have any say in preparing the slate, such practice can-not reflect the voters' political expression accurately, and it allowsthe party to act as ade factomiddleman in public election, therebyviolating the constitutional principle of direct election.

(3) Article 189(1) of the Public Election Act states that the seatsfor the proportional representatives in the National Assembly will beallocated to parties which have obtained five or more seats in thegeneral election for the National Assembly or upward of 5/100 of thetotal valid votes, and that one seat of the proportional representativeis to be allocated to each political party which has obtained morethan 3/100 and fewer than 5/100 of the total valid votes in the gen-eral election (Such statutory provision is called the "blockade clause").Such a requirement for a minimum amount of votes to be obtainedfor seat allocation for proportional representatives is excessive, andis contrary to the principle of equality in public election.

C. 2000Hun-Ma134

(1) According to Article 189(1), voters cannot cast a ballot for the party of one's choice to elect the proportional representatives in the National Assembly. Instead, votes cast for a party nominee in electoral districts are assumed to be votes for the party which nominated the candidate. This is in violation of the constitutional principle of direct election.

(2) The above provision also mandates the allocation of seats forproportional representatives in proportion to the percentage of voteseach party has received in the nationwide district elections. Thismeans that a voter is deprived of his or her choice for either a dis-trict lawmaker or a proportional representative, should his or herpreference for a district candidate and a proportional candidate differ.This violates the right to vote protected by Article 24 of theConstitution and the right to form the National Assembly protectedby Article 41(1) of the Constitution.

(3) From the perspective of a party nominee for proportionalrepresentatives, when a voter supporting the nominee does not votefor the candidate nominated by the same party in the electoral dis-trict, the nominee will be deprived of the opportunity to be elected asa proportional representative, and this would constitute an infringe-ment on the nominee's right to be elected (right to hold publicoffices). In case of a candidate from the electoral district, voterssupporting the candidate may not vote for the candidate becausethey do not support the party that nominated the candidate. Thiswould deprive such candidate an opportunity to become an electedofficial and violate the candidate's right to be elected.

3. Review

A. Constitutionality of a Deposit Requirement

(1) Constitutional limits of a deposit requirement

The freedom to run for the National Assembly is protected underthe constitutional right to be elected (the right to hold public offices).It is one of the most important liberty rights in realizing democraticideals, and should not be subject to unnecessary regulation and re-striction. Restriction on the right to be elected should only beallowed when a particular skill or qualification is required for properservice in the office or when such restriction is necessary to achievefairness in elections. The statutory provisions in the Public ElectionAct that stipulates age eligibility for candidates

running for NationalAssembly elections (Article 16(2)), listing reasons for ineligibility forelections (Article 19), and limiting public officials from running forelections (Article 53) are some examples of exceptional conditions under which restriction of the constitutional right to be elected ispermitted.

The purpose of the deposit requirement for candidates runningfor the National Assembly is to prevent insincere candidates fromrunning for office, thereby enabling efficient election management,and to secure money which would be used as financial sanctions forillegal election activities during election campaigns. The public in-terest sought, through the requirement of a candidacy deposit is ef- fective management of election, a purely administrative interest. On the other hand, the people's right that is being infringed at hand isthe right to be elected, a very important basic right. Given that,even if the deposit requirement for candidates is constitutional, the amount of deposit required should remain at a minimum level, justenough to prevent insincere applicants' candidate registration, but itshould not be so excessive as to restrict the right to hold publicoffice of people who are serious about running for election.

It is very difficult, if not impossible, to suggest a criterion forthe adequate number of candidates or the maximum number ofcandidates in excess of which would be called a "disorderly array ofcandidates." Furthermore, it is not certain whether the depositrequirement indeed brings about the desired effect of preventing theparticipation of a disorderly array of candidates in public elections.Therefore, discretion is called for when requiring the candidacy de-posits and deciding on the minimum deposit requirement. It wouldbe prudent to keep the amount of deposit at a symbolic level so as not to infringe the constitutional right to hold public office.

(2) Constitutionality of the Amount of Candidacy Deposit

(A) Earlier, the Court found Article 33 of the Election of NationalAssembly Members Act, which required each candidate to deposit 20million won (for party nominee, 10 million won) non-conforming tothe Constitution (1 KCCR 199, 88Hun-Ka6, September 8, 1989). TheCourt decided that the deposit requirement of 10 or 20 million wonwas prohibitive to people of ordinary income, or people in theirtwenties or thirties, and that it formed an artificial obstacle to permitonly the wealthy to be candidates. The Court ruled that the pro-vision requiring such an excessive election deposit was against theprinciple of democracy and violated the right to political participation.

(B) People of ordinary means cannot easily raise 20 million won,the amount of deposit that a candidate registering for the NationalAssembly election has to make to the competent election commission,as mandated by Article 56(1)[2] of the Public Election Act, and thisstate of affairs has not changed since the Court's decision in 1989.And deposit requirement of 20 million won would make most peoplegive up their political aspiration to become a member of the NationalAssembly. It is in itself a large sum of money for people in low-income groups and people in their twenties or thirties. Moreover, it could be said that such deposit requirement may be a financial bur-den even for members of the middle class (The average monthly realincome of all industries of Korea in 2000 was 1.422 million won.The consumer price index was 68.2 in 1989 and 121.5 in 2000 if it isset at 100 in 1995.). As such, a political aspirant who cannot raisethe money to make the candidacy deposit would be as a matter offact prevented from running for the National Assembly election evenif he or she qualifies for the office in all other respects and hasexcellent credentials. The problem goes beyond the infringement on the rights of individual political aspirants, and it becomes a problemof social classes and generations. Excessive deposit requirementswould make it difficult for people of ordinary means and members ofyounger generations from running for the National Assembly, and thismeans that

representatives reflecting their voices would be absent inthe National Assembly. These people are not a mere minority of theKorean society, but form an integral part of the society. If theirvoices are not reflected in the state affairs, it is against the prin-ciple of representative democracy and contrary to the principle ofdemocracy which holds pluralism as one of its basic virtues.

(C) In case of the wealthy people to whom 20 million won is nota significant amount, this inflexible candidate deposit requirement willnot be able to serve its legislative purpose, namely, to prevent theregistration of insincere candidates. And also, the deposit require-ment will not be useful against people who think running for theNational Assembly election, in itself, would bring them benefits worthmore than 20 million won even if it is forfeited. In these cases, theproblem would persist no matter what the amount of required depositis. The deposit requirement would have a preventive effect onlyagainst those to whom the required sum is financially burdensome,and therefore does not serve its legislative purpose of preventingparticipation of insincere candidates who do not think of the depositas a burden from running for election. There would be other rea-sonable ways of deciding the minimum deposit requirement such asrequiring a deposit proportional to one's earnings or to the pay to bereceived from the public office that one runs for. At any rate, the deposit requirement should not be too excessive.

(D) Article 48(2)[2] of the Public Election Act requires an inde-pendent candidate to obtain the recommendation of more than 300 butfewer than 500 electors when running for the National Assembly.Since the elector recommendation requirement can serve as a reason-able and effective means to prevent insincere candidates from regis-tering for public election, additional deposit requirement of a largesum would constitute an excessive regulation.

(E) Even if a sum of 20 million won is not burdensome for mostpolitical aspirants, so that only a minority of them are forced to giveup registration for candidacy, it is still unjust so long as it depriveseven a minority of people of an opportunity to participate in publicelections. It is because overlooking the right to participate in poli-tical affairs of members of a minority group would result in neglect-ing the protection of basic rights of the 'alienated minority' inevi-tably produced by the constitutional principle of a rule of majority,thereby violating the constitutional protection of rights.

(F) In conclusion, uniform and absolute deposit requirement of 20 million won for all candidates in the National Assembly election does not serve its legislative purpose to prevent the registration ofinsincere candidates. On the other hand, it forces many people, espe-cially those of ordinary means or individuals from younger genera-tions, who are sincere about running for public election, to renouncetheir aspiration to run for the National Assembly, because of thefinancial burden imposed by the excessive deposit requirement. Suchrequirement infringes on the right to equality and the right to beelected, and unduly restrict the freedom of the general public tochoose their representatives.

B. Constitutionality of the Provision on the Return of

Deposit

(1) Article 57(1) and Article 57(2) of the Public Election Actmandate the return and forfeiture of a candidacy deposit. Statutoryprovisions provide the ground for return of deposit money when acandidate is elected or dies during the campaign, and forfeiture of thedeposit when a number of votes obtained by a candidate is less thanthe number given by dividing the total valid votes by the number ofcandidates or is less than 20/100 of the total valid votes (herein-after, such statutory provision will be called "deposit return clause").Forfeiture of the deposit is inseparable from the issue of the candi- dacy deposit requirement. If the deposit requirement is necessary toprevent

the participation of a disorderly array of candidates in publicelections, forfeiture of the deposit following a pre-set criterion is nec-essary to keep the deposit requirement provision effective. However,the criterion for forfeiture of the candidacy deposit, like the amountof the candidacy deposit, needs to be within the constitutional bound-ary in order not to infringe on the right to be elected.

Even when the deposit required for candidacy registration is re- latively a large amount, it may not excessively restrict the exercise of the right to be elected if it is very easy to satisfy the conditions for the return of the candidacy deposit. However, if it is very dif-ficult to fulfill the conditions set out for the return of candidacydeposit, a political aspirant cannot partake in the public election unlesshe or she is ready to give up the deposit money. Needless to say, this would limit the exercise of the right to be elected. Therefore,the criterion for the return of the deposit should not be so harsh as to act as an obstacle against sincere candidates.

(2) An election is not merely a process to decide the winner of anelection campaign. It is a process through which citizens expresstheir diverse political opinions, and candidates contribute to the for- mation and conveyance of political opinions. An election contributes to the maintenance of peace in a democratic society as constituentsfind a vent for their political desires through the election process.In this light, labelling of an unsuccessful candidate as "insincere", andmaking him or her subject to a legal sanction based on the electionresult alone, would be against the fundamental principles of democ-racy. A candidate might lose an election because he or she rep- resents the voices of a minority group, but if he or she sincerelyparticipated in the election process, due respect should be paid to thevoices of a social minority in order to be faithful to the constitu-tional principle of democracy based on pluralism and protection of the minority. It follows that the minimum number of votes to beobtained for the return of the candidacy deposit should be a small fraction of the total number of valid votes, if the number of votesobtained is to be used as a criterion to determine whether to returnthe candidacy deposit.

(3) Under such constitutional guideline for the return of a can-didacy deposit, we can conclude that the current deposit return clausesets forth too strict a standard to encourage the participation of sin-cere political aspirants in public election, and that the clause improp-erly penalizes serious candidates who exerted their best efforts towin the campaign with unreasonable emphasis on the election resultalone. While a candidate may have received votes less than 20/100 ofthe total valid votes, the candidate may have contributed to achiev-ing democratic ideals by exerting his or her best efforts as a minoritycandidate. It would be improper to call such a candidate insincereand confiscate his or her candidacy deposit. When there exist two orthree major political parties, it would be very difficult for candidatesfrom smaller political parties or newly organized political parties towin more than 20/100 of the total valid votes, and the above crite-rion will restrict participation of smaller political parties or newlyorganized parties in political affairs.

[For example, in the 2000 general election, there were 63,862 validvotes cast in the electoral district of Kangbuk-Ku B, Seoul. When this was divided by the number of candidates (seven), the resultingfigure is 9,123. The number of votes equivalent to 20/100 of the totalvalid votes is 12,772. In this case, candidates receiving less than9,123 votes would not be able to get their candidacy deposit backunder the present election law. According to the election results, onlytwo candidates received more than 9,123 votes. A candidate whoreceived 8,381 votes, or 13.26% of the total valid votes, did not gethis deposit back (reference to "Facts on the 16th National Assembly Election" published by the Central Commission on Election Manage-ment). It is not reasonable to sanction a candidate who received morethan 13.26% of the total valid votes or to label candidates other thanthe two who received more than 9,123 votes as "insincere" based on the final ballot count alone.]

(4) In conclusion, the instant provisions excessively restrict theright to hold public office, and the provisions are against principlesof democracy.

C. Constitutionality of Proportional Representatives in

the National Assembly and Constitutionality of the

Election System Allowing One Vote for Each Voter

(1) Matters in Dispute

(A) The Public Election Act adopts the proportional representa-tion system in National Assembly election. The electoral district ofa proportional representative consists of the entire nation (Article 20).The current election system adopts the proportional representationsystem with a fixed slate of party nominees (under this system, theseats of the proportional representatives are allocated to each party according to the order in the preset list of nominees submitted bythe party, and changes in the order of the slate are not allowed).Under the present election system, the National Assembly is composedof lawmakers elected from individual electoral districts and propor-tional representatives from a national constituency. The Public Elec-tion Act permits only one vote for each voter, (Article 146(2)), and does not allow an independent vote for the political party of one'schoice. Article 189(1) of the Act states that the allocation of seatsfor proportional representatives will be proportional to the sum ofvotes obtained by all candidates of a particular political party in thenationwide district elections. Article 146(2) and Article 189(1) are closely related. Combined, the statutory provisions allow only onevote for the election of a district lawmaker and do not allow a sepa-rate vote for a political party of one's choice. With such statutoryprovisions in place, the current election system assumes that thevoter's choice of a candidate in the electoral district is the same ashis or her support for a particular political party. The question iswhether such provisions are in accordance with the principle of de-mocracy, the principle of direct election, and the principle of equal-ity in public elections.

(B) The proportional representation system refers to an electionsystem where parliamentary seats are allocated to political parties inproportion to voters' support for a particular party or its nominees.The proportional representation system has been implemented to sup-plement the majority representation system which is prejudiced infavor of major political parties. The system does not reflect diversevoices, and produces a large quantity of wasted votes. When im-plemented properly, the proportional representation system can beused to produce representatives of various social groups, positively promote party politics, and prevent political monopoly by fosteringcompetition among the political parties.

(C) Article 41(3) of the Constitution states that "the constitu-encies of members of the National Assembly, proportional representa-tion and other matters pertaining to National Assembly elections shallbe determined by Statute." Accordingly, the details to implement theproportional representation system are left to be decided by the legis-lature. The proportional representation system, however, should not violate the principle of democracy which is the constitutional guide- line for governance, and it should be in accordance to Article 41(1)which states that "the National Assembly shall be composed of mem-bers elected by universal, equal, direct and secret ballot by the citi- zens."

(2) Violation of the Principle of Democracy

An election is a process through which people exercise their sov-ereignty.

Therefore, the election system must be designed to accu-rately reflect people's opinions and guarantee the freedom of choice.Moreover, the process through which a party nominates a candidatefor an election should be democratic. If these conditions are not met,such an election system is incongruous with the principle of democ- racy and the principle of people's sovereignty.

(A) It is not against the principle of democracy to only adopt themajority representation system and not the proportional representa- tion system, as long as voters' support for a particular candidate in anelectoral district is accurately reflected. However, when the pro-portional representation system requiring submission of a slate ofparty nominees is implemented, the election should also accurately re-flect people's support for a particular political party, and allocation ofseats for proportional representatives to a specific party should cor- respond to people's support and preference for that party. However, the present system of allocation of seats for proportional represent- atives in the National Assembly under Article 189(1) of the PublicElection Act combined with the one-person one-vote system activelydistorts the public support for a particular party.

When an elector supports either a candidate in one's electoraldistrict or a political party, but not both, half of the message in the elector's ballot is not conveyed whether the elector votes for one'sfavorite candidate or for the political party of one's choice. Thepresent election system even distorts the honest political opinion ofelectors. When an elector casts a ballot for one's favorite candi- date, this is counted toward the party that nominated the candidatein allocating the seats of the proportional representatives in theNational Assembly even if the elector does not support the partywhich nominated the candidate, and this would contribute to alloca-tion of seats for proportional representatives to be directly against theelector's choice. On the other hand, when an elector casts a ballotfor a party of one's choice, the vote would contribute to the electionof a candidate that the elector may not support, and this does notaccurately reflect the elector's choice for the candidate.

Moreover, the distribution of parliamentary seats under the currentelection system cannot accurately reflect the people's support for anewly formed political party, and the existing major parties may beassigned more proportional representative seats than actual supportthey receive from the people. Generally, a nominee of a newly formedparty is in a relative disadvantage compared to a nominee of anexisting major party, in terms of candidate recognition, party organi-zation, and resources. An elector who supports a newly formedparty may not want his or her vote wasted, and thus, may decide tocast a vote for a nominee from a major party instead of for anominee from the newly formed party. Such votes will be counted as votes in support of the existing major party. If a separate voteis allowed for one's favorite political party, the voter in such a situ-ation can express one's support for the newly formed party, contri-buting to the allocation of seats for proportional representatives tothe same party. Thus, the present election system allows oligopolyof political parties, and hinders a new party from making its ap-pearance in the National Assembly.

(B) Under the present election system, allowing one vote perperson, a voter's support for a particular political party is assumed through one's vote for the candidate in the electoral district. Thismeans that an elector has no option but to express one's choice of a candidate as well as one's support for a particular political partyin a single vote. This poses a serious problem when the candidate ofone's choice is not from the political party that he or she supports.In this case, the voter is in a dilemma. The elector has to choosewhether to cast a vote for a candidate or for the political party, orhas to find the best way to maximize the value of his or her vote.In another case when the voter's favorite party does not nominate acandidate in the electoral district, it is impossible for the voter toexpress his or her support for that party. In sum, the present elec-tion system deprives the voter of the freedom to choose either

the candidate or the party. Such an awkward dilemma, combined withthe general distrust of politics, may lead voters to choose not to voteat all.

(C) Article 8(2) of the Constitution states that "political partiesshall be democratic in their objectives, organization, and activities,",thereby fostering the principle of democracy in the political partysystem. Since one of the most important objectives and activities ofa political party is to nominate and support a candidate in publicelections, the nomination of and the final order of the slate of candi-dates, to the seats of the proportional representatives in the NationalAssembly, should be decided in a democratic process. In order tosatisfy the constitutional requirement of democracy in party politics,the nomination process should be decided by democratic means in ageneral meeting of all party members or in a special meeting of aboard of representatives.

However, the statutory provisions in the present Public ElectionAct do not provide sufficient basis for a systematic and proceduralregulation to promote democracy in party politics. Article 47 (2) ofthe Act states that a political party, when recommending a candidate,shall observe the democratic procedure as provided in Article 31 ofthe Political Parties Act. Article 31 of the Political Parties Actstipulates that "A political party shall recommend candidates for pub-lic office in such a manner that the intention of the representativeorgan of the party having the jurisdiction over the election district ofthe public office, which recommends the candidates, is reflected, and a concrete procedure shall be determined by the party constitution." The constitutional requirement of democratic nominations of propor-tional representatives may not be satisfied if procedural details that"reflect the intention of the representative organ of the party" areleft to the party constitution. If candidates for the seats of propor-tional representatives in the National Assembly are not nominatedthrough a democratic process but are decided by the influence of afew party leaders, democratic legitimacy of elected proportional rep- resentatives will be very weak indeed.

(3) Violation of the Principle of Direct Election

(A) The principle of direct election demands that an election out-come should be decided by a direct count of electors' votes. In termsof the National Assembly election, it means that elections of law-makers or the acquisition of seats in the National Assembly by apolitical party should not be decided by middlemen or the party, butby the direct result of electors' votes. Historically, the principle ofdirect election has meant the elimination of election middlemen. Underthe majority representation system, this would be enough. But underthe proportional representation system, allocation of seats to politicalparties becomes an integral part of the election process. As such, theprinciple of direct election applied to the proportional representationsystem means that election of National Assembly members as well asthe allocation of seats for proportional representatives to each partymust be directly decided by electors' votes.

(B) The present Public Election Act has adopted the proportionalrepresentation system with a fixed slate of party nominees. Unlikethe proportional representation system with the free slate or change-able slate, where electors can actually express individual support for particular party nominees, the party has the final say in nominatinga candidate under the proportional representation system with a fixedslate. A question then arises whether this does not violate the con- stitutional principle of direct election. Under the fixed slate system, the nominees, the order of nominees, and methods of seat allocationare preset at the time of the election, and the party cannot changethese factors after the election. Therefore, while electors cannotdirectly vote for individual candidates, the voters have the ultimatepower to decide, and the election outcome is directly dependent on the voters' opinions expressed by

participating in elections. Thus,implementation of the fixed slate system does not violate the prin- ciple of direct election in itself.

(C) The current election system, which assumes that the voter'schoice of a candidate in the electoral district is the same as his or hersupport for a particular political party and does not allow a separate vote for the slate of party nominees for the seats of the proportional representatives, is contrary to the principle of direct election.Sincethe election of proportional representatives in the National Assem-bly and the election of district assemblyperson are two differentelections, the voter should be allowed to cast two separate bal-lots, one for the voter's favorite candidate in the electoral district andthe other for the slate of nominees of the political party of one'schoice. As long as a voter can cast a ballot for a preset slate ofparty nominees according to one's preference, the minimum require-ment for the principle of direct election, namely election of a publicofficial by the direct votes of electors, is satisfied. However, sinceelectors are not allowed to cast separate ballots expressing partypreference under the present election system, the voters do not havethe right to directly decide how to distribute the seats of proportionalrepresentatives in the National Assembly. Under the present system,an elector can contribute to the election of a proportional represent-ative only indirectly and coincidentally through one's vote for a partynominee in the electoral district - if and only if the candidate ofone's choice is from the party that he or she supports. Because a separate vote for the slate of party nominees for proportional repre-sentatives is not allowed under the current system, nomination bythe political party, not votes cast by electors, has the final and deci-sive effect in electing the proportional representatives in the NationalAssembly.

Here, another question arises: does a vote cast for a candidate inthe electoral district imply support for a particular political party, andif so, to what extent? Currently, election outcomes in each electoraldistrict depend more on qualifications of an individual candidate ratherthan on the party which nominated a particular candidate. An elec-tion at the electoral district level is mainly decided by individualqualifications, regional interests, regional connections, and campaignmanagement, whereas the outcome of a party election, an election inwhich the voters cast ballots for their favorite political parties, isdecided by national platforms, social and economic policy goals, andthe political ideology of particular parties. While it may be true thata ballot cast for a certain candidate in an electoral district reflects not only one's choice of candidates, but also support for the partywhich nominated the candidate, the outcome of the election at thedistrict level does not reflect support for a particular political partyaccurately: support for a particular party only carries secondary im-plications in the election outcome at the district level. There is alimit in equating votes for a candidate in an electoral district withsupport for the party which nominated the candidate. This is espe-cially so in Korea, where there is little, if any, difference between theexisting parties in their ideologies, policies, and party platforms, andwhere many voters assert that they do not support any political party(According to a newspaper article concerning a survey about the in-dividual voting criterion conducted before the 16th general election forthe National Assembly in 2000, 35.8% of the respondents suggested that they would vote based on candidate's individual qualifications;24.3% according to contents of campaign promises; 17.3% according to career records; 11.2% according to regional connection; and 8.4%according to the political party which nominated the candidate).

(D) In conclusion, the present proportional representation systemis contrary to the principle of direct election because voters cannot exert a direct and conclusive influence on elections for proportionalrepresentatives in the National Assembly.

(4) Violation of the Principle of Equality in Election

(A) The principle of equal elections is a manifestation of theprinciple of equality in elections. It mandates not only equality in thenumber of votes but also equality in their weight, that is, the extentthat one vote contributes to the entire election system of election(7-2 KCCR 760, 771, 95Hun-Ma224 and etc., December 27, 1995).

(B) Under the present election system adopting the allocation ofseats for proportional representatives in the National Assembly, whenan elector votes for a party nominee in the electoral district, his orher vote contributes to the election of a lawmaker from the electoraldistrict, and to the allocation of seats for proportional representatives.On the other hand, when an elector votes for an independent in the electoral district, his or her vote only contributes to the election of a lawmaker from the electoral district, and the vote has no value in the allocation of seats for proportional representatives. Hence, therearises inequality in the value of a vote. One has to endure suchinequality if it is a result of his or her choice - under an electionsystem where separate votes are allowed for individual candidates andthe party, an elector may choose to vote for an independent, and notcast a ballot expressing one's support for a political party. On theother hand, when a person votes for an independent because the partyof one's choice has not nominated a candidate, the elector is forcedto suffer against his or her will inequality in the value of one'svote (If separate votes are allowed for individual candidates and theparty, such individual will be able to enjoy equality in the value ofvote by casting a separate vote for the party of one's choice).

In this light, the present election system discriminates againstvoters who support independent candidates from voters who support party nominees, without a reasonable basis, and it violates the prin- ciple of equality in election.

(C) Article 189(1) of the Public Election Act states that the seatsof the proportional representatives in the National Assembly will beallocated to the Party which has obtained five or more seats in thegeneral election for the National Assembly or upward of 5/100 of thetotal valid votes, and that one seat of the proportional representativeis to be allocated to each political party which has obtained more than3/100 and fewer than 5/100 of the total valid votes in the generalelection. Such statutory provision setting forth a limit for allocationof seats for proportional representatives is called the "blockadeclause." The blockade clause is designed in such a way as to dis-criminate against minor political parties in allocating seats for pro-portional representatives, and it leads to the nullification of votes castfor a political party which failed to obtain the minimum number ofvotes necessary for allocation of a seat. Therefore, a review for the violation of the principle of equal election is called for.

Whether the blockade clause is necessary or legally justified isa matter to be decided with due consideration to the present state ofpolitical affairs in a particular country. While it may not be readilyconcluded that the minimum requirement of votes for allocation ofseats for proportional representatives set by the current statutory pro-visions is excessive, the present blockade clause shares the problemsarising from the current allocation of seats for proportional repre-sentatives in the National Assembly, because it is based on the totalvalid votes earned by a political party in the nationwide districtelections.

A political system limiting parliamentary participation of a politi-cal party which obtained a number of votes less than the minimumrequired votes must be based on the premise that the election out-come accurately reflects people's support for particular politicalparties. The present election system, allocating seats for proportionalrepresentatives, while only allowing one vote per voter, is unable toaccurately reflect people's support for a particular party, and in somecases, it even actively distorts the amount of support that each partyreceives. This is because votes cast for a party nominee in elec-toral districts are assumed to be votes for the

party which nomi-nated the candidate under the present election system, while suchassumption may not hold true. A party which received more than5/100 of total valid votes in nationwide electoral districts may notnecessarily have support from the equivalent number of people. Thus,a party which may be actually supported by more than 5% of total electors may not be allocated a single seat for the proportional rep-resentative in the National Assembly under the current system, whilea party with less than 5% of total electors support may be allocatedmore than one seat. Because the present election system employs anunreasonable yardstick to assess people's support for a particular pol-itical party, the blockade clause is in violation of the principle of equalelection, no matter what the minimum required number of votes is.

(5) Miscellaneous

The current election system allowing one vote per elector andusing the outcome of the district election for the allocation of seatsfor proportional representatives may be justified if a legitimate publicinterest of great importance is protected by doing so or if the adverseeffect arising from allowing a separate vote for a political party ofone's choice is too great to implement such election system.

The Court, however, cannot discover such exceptional conditions.As we have seen, the present election system does not have any merit, but only has many problems in terms of the constitutionalfunction of the proportional representation system, namely, represen-tation of social groups corresponding to their sizes, promotion ofparty politics, and prevention of political monopoly.

The amount of work or cost associated with election managementmay be increased if a separate vote for a political party of one'schoice is allowed, but this is not a legitimate reason to postpone the enforcement of the State's duty to guarantee people's right to parti-cipate in government. An argument may be made that it may bedifficult for an average elector to properly understand the meaningof the one-person two-votes election system. But such an assertion may not hold as the educational level of ordinary Korean citizens is among the highest in the world, and the fixed slate system allowingtwo votes per voter is much simpler and clearer than the propor-tional representation system which adopts the free slate or change-able slate system, currently employed by many countries.

According to foreign legislative precedents, countries implementingboth the majority representation system and the proportional repre-sentation system (i.e. Germany, Japan, New Zealand, Italy, and Russia)allocate seats for proportional representatives based on a separate votefor political parties.

There may be numerous ways of implementing the one-persontwo-votes election system. Legislators have comprehensive formativepowers to solve such problems as division of electoral districts, mat-ter of nominations, voting methods, and specific details about seatallocations.

(6) Sub-conclusion

(A) Article 189(1) of the Public Election Act is contrary to theprinciple of democracy, the principle of direct election, and the prin-ciple of equal election. Article 146(2) stating "one person shall beentitled to one vote" is constitutional if the proportional representationsystem is not adopted and only if the majority representation systemis in place. However, the provision combined with Article 189(1)brings about many constitutional problems as seen above when theproportional representation system is adopted. Therefore, the statu-tory provision of Article 146(2) stating "one person shall be entitled toone vote" is unconstitutional as long as a separate vote for a poli- tical party is not allowed, while the election system implements boththe majority

representation system and the proportional representationsystem based on party nomination.

(B) Article 146(2) and Article 189(1) infringe on the right to vote.Firstly, as long as the proportional representation system is imple-mented, electors should have the right to select their proportional rep-resentatives. The present proportional representation system, however,does not guarantee the right to elect proportional representativesthrough a direct and free election by individual electors. Therefore, the provisions infringe on the right to vote and indirectly violate an individual candidate's right to be elected.

Secondly, the provisions infringe on the elector's right of equal- ity in election when voting for an independent candidate.

Finally, the provisions violate the right of equality of a politicalparty which was excluded from allocation of seats for proportionalrepresentatives, because it failed to meet the unreasonable requirementof minimum amount of votes and the right of equality of electorswho voted for the same party.

(7)Declaration of Unconstitutionality of Ancillary Provisions

Generally, when certain parts of an article is declared unconsti- tutional after constitutional review, the remaining provisions of the same act remain in force. However, if a certain provision is closelyrelated to the parts declared unconstitutional and such provision byitself is unenforceable, the Court can declare such provision uncon-stitutional (1 KCCR 329, 342, 89Hun-Ka102, November 20, 1989; 3KCCR 569, 581, 91Hun-Ka6, November 25, 1991; and 8-2 KCCR, 808, 829, 94Hun-Ba1, December 26, 1996).

Article 189(1) of the Public Election Act stipulates that seats of proportional representatives will be allocated to political parties ac-cording to the number of votes each party received in the nation-wide district elections, and the provision is a central element in im-plementing the proportional representation system. Article 189(2) ex-plains how to calculate the percentage of votes earned by a parti- cular party, and Article 189(3) and 189(4) prescribe how to allocateseats of proportional representatives. Article 189(5) and Article 189(6)dictate how decision of election of proportional representatives will bemade according to the seat allocation method provided by the abovestatutory provisions. Article 189(7) is a provision to allow alloca-tion of seats for proportional representatives in case elections in allthe local constituencies are not completed for any reasons. As such,if Article 189(1) is unconstitutional, the independent existence of an-cillary provisions of 189(2), (3), (4), (5), (6) and (7) is meaningless. Although these provisions are not provisions on review, it would beproper to declare them unconstitutional to achieve legal clarity, andthe Court hereby declares them unconstitutional.

4. Conclusion

Provisions regarding elections of district lawmakers in Article56(1)[2] and Article 57(1)[1] of the Public Election Act, provision ofArticle 57(2) regarding the forfeiture of candidate deposit money whenvotes earned are less than the number given by Article 57(1)[1], andprovisions of Article 189(1) - (7) are unconstitutional. Article 146(2)stating "one person shall be entitled to one vote" is unconstitutionalas long as a separate vote for a political party is not allowed, whilethe election system implements both the majority representation sys-tem and the proportional representation system based on party nomi-nation. This decision is by a unanimous vote of all Justices, andJustice Kwon Seong wrote a concurring opinion.

5. Justice Kwon Seong's Concurring Opinion

I think that the present allocation of seats for proportional repre-sentatives in the National Assembly, and the election system allowingone vote per person is contrary to the principle of free election.The Constitutional Court expounded on the principle of free election in an earlier case as follows:

The principle of free election is not explicitly prescribed by theConstitution, but it is a principle embedded in the election system of a democratic nation. It is based on the principle of people's sover-eignty, the principle of parliamentary democracy, and statutes con-cerning the rights to participate in government. The principle of freeelection implies the freedom to form political opinions and the free-dom to put such opinions into practice. More specifically, the prin-ciple includes the freedom to vote, the freedom to run for election,and the freedom for election campaigns." (6-2 KCCR 15, 28, 93Hun-Ka4 and etc., July 29, 1994; 7-1 KCCR 499, 506, 92Hun-Ba29, April 20,1995)

A free election is an election without any direct or indirectpressure or coercion that might encroach upon the elector's freedomof choice (K. Hesse, Grundzűge des Verfassungsrecht der Brd, 14th ed., paragraph 146), and the principle of free election is a principleprotecting an elector from administrative measures or statute exces-sively limiting the freedom of decision (BVerfGE 40, 11, 41; 66, 369,380). Under the current election system allowing one vote per person,if the candidate of one's choice is not from the political party that he or she supports, the voter is forced to forsake one's support for either the candidate or the party in the particular election. This istantamount to forcing an individual elector to cast a ballot for a poli-tical party that he or she does not support or a candidate that he orshe does not favor. In some instances, it would be difficult to choosewhether to cast a ballot for the candidate of one's choice or for theparty one supports, and the voter may choose not to vote at all.This restricts the freedom to form an opinion or the freedom ofchoice excessively. It encroaches on the right to exercise freedomof choice in public election and violates the principle of free election.As we have seen, the one vote per person system distorts the voter'ssupport, and this distortion of support is caused by forcing the voterto support the party of the candidate that he or she chose, or byforcing the voter to forbear participation in the election process alto-gether. Therefore, the present election system allowing one vote perperson is contrary to the principle of free election.

The principle of free election also implies prohibition of compul- sory election. Abstention from voting is not permissible in compul-sory elections, and exercise of the right to vote becomes a duty. Theinstant statutory provision does not allow an elector the freedom notto vote for a proportional representative unless he or she does notcast a ballot in the district election, and it can be said that votingfor a proportional representative is forced upon an elector. This maynot be a typical form of a compulsory election, but it is against the principle of free election nonetheless.

Justices Yun Young-chul (Presiding Justice), Han Dae-hyun,Ha Kyung-chull, Kim Young-il, Kwon Seong, Kim Hyo-jong(Assigned Justice), Kim Kyoung-il, Song In-jun, and Choo Sun-hoe

Aftermath of the Case

The decision made a strong impact on society. Newspapersevaluated the decision as one of the most significant adjudications ofthe Constitutional Court to

concretize people's sovereignty. Manyacademics pointed out that an overhaul of the entire election systemis in order. Major parties responded differently to the decision.Smaller parties welcomed the decision because it lowered the existingobstacle blocking their advance to the central political arena. Afterthe ruling, the political parties started negotiations on election reformmeasures and agreed to decrease the amount of candidacy deposit.However, they have yet to reach an agreement concerning the pro-portional representation system. On October 8, 2001, the NationalAssembly revised the Public Election Act. The deposit requirementwas lowered from 20 million won to 15 million won, and the mini-mum votes to be obtained by a candidate to get the deposit back wasreduced from 20/100 of total valid votes to 15/100. The constitu-tionality of the amended provisions is again being challenged throughconstitutional complaints (2001Hun-Ma687·691).

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