[2] In a case where the central committee delegates the entire authority of the central committee to the extraordinary countermeasure committee, which is a temporary guidance division, and the emergency countermeasure committee resolves to amend the party constitution for the purpose of changing the party members system, the case holding that the above party constitution amendment resolution is invalid as it goes against

[2] In a case where the central committee delegates the entire authority of the central committee to the extraordinary countermeasure committee, which is a temporary guidance division, and the emergency countermeasure committee resolves to amend the party constitution for the purpose of changing the party members system, the case holding that the above party constitution amendment resolution is null and void as it goes against

A. The validity of a resolution to revise the party constitution of the respondent on November 21, 2006 from the Emergency Countermeasure Committee of the respondent until the judgment on the merits between the petitioner and the respondent is rendered shall be suspended.

B. The representative of the respondent shall not execute the party constitution as amended by the above resolution.

2. Litigation costs shall be borne by the respondent;

In full view of the overall purport of the record of this case, the following facts are substantiated.

A. The respondent is a political party established on the basis of Article 8 of the Constitution and the Political Parties Act, and the applicants are party members (period party members) of the respondent.

B. On May 31, 2006, the fourth regional election of Dong-dong local government, which was implemented on May 31, 2006, the guidance division of the party chairperson and others of the respondent were resigned. On June 7, 2006, the respondent held a joint meeting of the central committee and the general meeting of the National Assembly members with the attendance of the central committee members and 116 members of the National Assembly on June 7, 2006, and the respondent established the "Committee on the Election of Emergency Countermeasures Agency Members" composed of eight (5) former president of the party, etc. to delegate the authority to organize the temporary guidance committee (hereinafter "non-performance").

C. In addition, after closing the joint meeting of the above central committee and the general meeting of delegates, the respondent immediately held the central committee in the presence of 70 of the 82 incumbent central committee members, and discussed the matters delegated by the central committee in the absence of subrogation to be constituted in the future. During that process, ① the method of delegation of all the powers, including the right to amend the party constitution, and ② the method of delegation of all the powers except the right to amend the party constitution, the respondent decided to delegate all the powers of the central committee to non-Subrogation with the consent of 49 members from among the central committee members present through the voting procedure.

D. After that, on November 21, 2006, the respondent held a non-Subrogation meeting on November 21, 2006, and decided to change the party members system of the respondent from the previous charter party system to the basic party members system, and to revise Article 6 of the party constitution of the respondent, such as the attached list, (hereinafter “instant party constitution amendment resolution”).

E. In addition, on December 21, 2006, the respondent held the second non-Subrogation meeting on December 39, 2006, elected national representatives according to the revised basic party system, and passed a resolution to hold a regular national representative meeting on February 14, 2007.

(f) In relation to (1) the party constitution of the respondent, the National Representatives shall have the authority to enact and amend the Constitution, to adopt and amend the platform and basic policies, to elect the chief executive officer and the chief executive officer, to decide matters concerning the dissolution and merger of the party, to decide matters on the agenda proposed by the Central Committee and other important matters, and to delegate part of their authority to the Central Committee (Articles 15) and (2) with respect to the exercise of voting rights of the Central Committee (Article 15). The Central Committee shall have the authority to make a temporary resolution of the Central Committee on the execution of the party constitution, with the exception of (Article 19) the enactment and amendment of the Constitution, the establishment of the Standing Committee and the amendment of the Constitution, the composition and dissolution of the Central Committee and the extraordinary committee for the National Assembly members, the chief executive officer of the National Assembly shall have the authority to convene the Central Committee at least 1/3 of its incumbent members, with the consent of a majority of all incumbent members, and shall hold, with respect to the party constitution and the Central Committee at least 3/4 of the Central Committee.

2. Chief;

A. Applicant's assertion

(1) In the party constitution of the respondent, the National Assembly of Representatives (Article 15 (1) 1) has the authority to amend the party constitution in the National Assembly of Representatives (Article 15 (1)). In exceptional cases, the Central Committee may amend the party constitution, but in order to delegate the right to amend the party constitution delegated by the National Assembly of Representatives to non-Subrogation (Article 1 of the Addenda). Thus, unless there are grounds for such re-elections, the Central Committee cannot be allowed to re-election the right to amend the party constitution from the Central Committee, and (2) non-Subrogation is merely a "temporary guidance division" elected at the Joint Committee of the Central Committee and the General Assembly of Representatives, and thus, it is not possible to exercise its independent authority, such as the party constitution amendment, because it does not fall under the organization or non-permanent committee as provided for in the party constitution, and even if non-Subrogation is entitled to delegation of authority from the Central Committee as an independent organization, it is not necessary to comprehensively obtain the authority of the Central Committee for the party constitution amendment and at least 2/3/4 of the amendment quorum.

B. Respondent's argument

In this regard, the respondent (1) has no provision explicitly prohibiting the re-election of the party constitution, etc. of the Central Committee in the party constitution and the party regulations, and (2) the respondent has the character of "temporary guidance division" as provided by Article 63 (2) of the party constitution, and the character of "non-permanent committee" as provided by Article 19 (1) 12 of the party constitution, and can be exercised with delegation of authority, such as the party constitution amendment right, as its independent organization provided by the party constitution. (3) In order for the Central Committee to re-election its authority, it is sufficient that "the attendance of the majority of the members and the majority of the members present" as provided by Article 20 (4) of the party constitution and the issuance of the party constitution is required by the Central Committee. (4) The respondent asserts that, even if it exercises the right of the party constitution amendment delegated by the Central Committee, there is no need for the quorum of the National Dong-si local election, the necessity of development of the party constitution and the necessity of the new party constitution, the necessity of the party constitution amendment.

3. Determination

A. On the other hand, Article 8(1) of the Constitution provides that "the establishment of a political party shall be free, and the multiple party system shall be guaranteed." Article 8(3) of the Constitution provides that "a political party shall be protected by the State under the conditions as prescribed by Act, and the State may provide funds necessary for the operation of a political party in accordance with the conditions as prescribed by Act." Article 37(1) of the Political Parties Act provides that "a political party shall have the freedom of activities in accordance with the Constitution and Acts and subordinate statutes." Article 37(1) of the Political Parties Act provides that "a political party shall have the freedom of activities in accordance with the Constitution and Acts." A political party is a voluntary organization of the people with the aim of participating in the formation of the political will of the people by promoting political arguments or policies responsible for the interests of the people and recommending or supporting candidates for election of public officials (Article 2 of the Political Parties Act). As such, the freedom of political party activities shall not be neglected in guaranteeing them.

However, Article 8(2) of the Constitution provides that "a political party shall be democratic in its purpose, organization, and activities, and shall have an organization necessary to participate in the formation of the people's political will." Article 8(4) of the Constitution provides that "if the purpose or activities of a political party violate the basic democratic order, the Government may file a lawsuit against dissolution thereof with the Constitutional Court, and the political party shall be dissolved by the Constitutional Court." This means that a political party's act as a political party of a democratic state clearly violates the provisions of the Constitution, etc. concerning the principles of democracy because its contents and procedures are remarkably unfair beyond the scope of autonomy guaranteed by the Constitution and laws, or if it clearly violates the provisions of the Constitution, etc. concerning the principles of democracy, etc., such act is null and void.

나. 돌이켜, 이 사건에 관하여 보건대, ① 당헌개정권의 위임 및 비대위의 권한과 관련하여, ㉠ 피신청인의 당헌에서는 원칙적으로 당헌개정안의 발의권을 ‘당무집행에 관한 최고의결기관’인 중앙위원회 또는 ‘최고대의기관’인 전국대의원대회에 부여하고, 당헌개정안의 의결권을 전국대의원대회에 부여하고 있는 점, ㉡ 다만 피신청인의 당헌에서는 예외적으로 당헌개정안의 의결권을 중앙위원회에 부여하되, 불가피한 사유로 당헌을 개정할 필요가 있는 경우로 제한하고, 그 의결 정족수를 재적 중앙위원 3분의 2 이상으로 가중함과 아울러 차기 전국대의원대회의 추인을 받도록 규정하고 있는 점, ㉢ 이러한 규정은 ‘피신청인의 명칭, 목적, 당원의 자격, 기관의 조직 및 구성 등 핵심적 사항’을 규정하고 있는 당헌이 엄격한 요건 및 절차에 의하여 개정되도록 보장하기 위한 취지로 해석함이 상당한 점, ㉣ 피신청인의 당헌에서는 전국대의원대회는 그 권한의 ‘일부’를 중앙위원회에 위임할 수 있다는 규정(제15조 제2항)을 두고 있을 뿐, 전국대의원대회의 권한 ‘전부’의 위임이나 ‘중앙위원회의 권한 위임’에 관한 아무런 규정을 두고 있지 아니한 점, ㉤ 피신청인의 당헌에서는 중앙위원회·의원총회에 ‘임시지도부’의 선출권한을 부여하고 있을 뿐, 이러한 임시지도부의 구성·권한에 관하여 아무런 규정을 두고 있지 아니할 뿐만 아니라, 이러한 임시지도부가 당헌 제30조에서 정한 ‘특정당무에 관한 의사결정과 집행을 위해 당의장이 최고위원회와 협의하고 중앙위원회의 의결을 거쳐 중앙위원회 아래에 정무직으로 구성되는 비상설위원회’에 해당한다고 단정하기도 어렵고, 또한 이와 같이 ‘특정당무’에 관한 의사결정 및 집행을 위한 비상설위원회에 중앙위원회의 권한 일체를 위임하는 것이 허용되는지도 명확하지 아니한 점 등 이 사건 기록에 나타난 여러 사정을 감안할 때, 중앙위원회가 비대위에 당헌개정권을 위임할 수 있거나 비대위가 독자적인 피신청인의 당헌상 기관으로서 당헌개정권을 행사할 수 있는지 의심스럽다.

In addition, with respect to the delegation requirements for the right to revise the party constitution, it is reasonable to interpret that the party constitution of the Respondent of the Respondent of the Respondent explicitly states the quorum of "not less than 2/3 of the Central Committee members" as the requirement for exceptional amendment of the party constitution, and that it is to ensure that the party constitution is amended in accordance with strict requirements and procedures. If the general quorum of the Central Committee can be re-entrusted to other agencies only with the attendance of a majority of the members and the majority of the members present at the meeting, it is dangerous that the general quorum (at least in the case of minimum, 1/4 of the incumbent members) may bring about the result that the party constitution can be amended, and it may not be the same as the "agreement of not less than 2/3 of the incumbent members" of the agency which has been re-entrusted with the right to amend the party constitution. Ultimately, this is contrary to the original part of the party constitution, and even if it is not possible to use it as a means to deviate or avoid the amendment requirements, the re-election of the party constitution may be permitted at least 2/3/3/3/3/3 of the party constitution.

However, according to the above facts, the resolution on the amendment of the party constitution of this case was made by non-Subrogation of the respondent who was re-entrusted the right to amend the party constitution by the Central Committee without obtaining the consent of at least 2/3 of the incumbent Central Committee members, and its resolution procedures, etc. go beyond the scope of autonomy as a political party and are null and void because it violates the party constitution of the respondent, so the respondent is entitled to seek the suspension of the validity of the above resolution and the suspension of execution of the amended party constitution by the above resolution.

Furthermore, considering the various circumstances shown in the records of this case, such as the fact that the applicant's status as a party member is changed due to changes in the qualification requirements, composition and scope of party members of the respondent according to the resolution to amend the party constitution of this case, and even if the applicant holds the qualification as a foundation party member, it is also necessary to preserve the order to suspend the validity of the resolution to revise the party constitution of this case by provisional disposition (as long as the national representative meeting holding the right to revise the party constitution of the respondent around February 14, 2007, which caused changes in the qualification and composition of the respondent due to the resolution to amend the party constitution of this case, it is difficult to view that the resolution to confirm the defects of the resolution to amend the party constitution of this case can be ultimately cured).

4. Conclusion

Thus, the applicant's application is justified because it is proved that the right to preserve and the need for preservation has been substantiated, and thus, it is accepted as a condition of providing the security not later than the judgment on the merits.

Judge Park Jong-young (Presiding Judge)