3.Prohibition of Using the Name of a Political Party Whose Registration Has Been Cancelled

[26-1(A) KCCR 155, 2012Hun-Ma431, 2012Hun-Ka19 (consolidated), January28, 2014]

In this case, the Constitutional Court held that Article 44 Section 1 Item 3 of the Political Parties Act which allows the election commission to revoke the registration of a political party failing to obtain a seat in the National Assembly after participating in an election of National Assembly members, and failing to obtain more than 2/100 of total number of effective votes and the part related to Article 44 Section 1 Item 3 of Article 41 Section 4 of the Political Parties Act which prohibits the use of the name of a political party whose registration has been cancelled for a certain period of time, violate the freedom to form a political party, running afoul of the Constitution.

Background of the Case

(1)Complainants and requesting petitioners (hereinafter the ‘complainants’)are political parties whose registrations have been cancelled and their representatives. Pursuant to Article 44 Section 1 of the Political Parties Act, the election committee cancelled the registration of the complainants, the New Progressive Party, the Green Party and the Youth Party, as they failed to obtain more than 2/100 of total number of effective votes. Also, the complainants were unable to use their names, such as the New Progressive Party, the Green Party and the Youth Party, due to Article 41 Section 4 of the Political Parties Act which prohibits the use of the name of a political party whose registration has been cancelled for a certain period of time

(2) Upon this, the complainants filed this constitutional complaint for the review of constitutionality of Article 41 Section 4 of the Political Parties Act (2012Hun-Ma431) and filed a suit for the revocation of the cancellation of political party registration. While the case was pending,

the complainants filed a motion to request a constitutional review of Article 44 Section 1 Item 3 of the Political Parties Act.

Provisions at Issue

The subject matter of this case is whether the part related to Article 44 Section 1 item 3 in Article 41 Section 3 (hereinafter, the ‘Prohibition Provision’) of the Political Parties Act (amended by Act No. 7683, August 4, 2005) and Article 44 Section 1 Item 3 (hereinafter the ‘Cancellation Provision’) of the Political Parties Act (amended by Act No. 7683, August 4, 2005) violate the Constitution. The provisions at issue are as follows:

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

Article 41 (Prohibition of Use of Similar Denomination, etc.) (4) Any title identical with that of a political party whose registration has been cancelled under Article 44 Section 1, shall not be used as the title of a political party from the date of such cancellation of registration until the date of election of National Assembly members first held due to the expiration of their term.

Article 44 (Cancellation of Registration) (1) When a political party falls under any of the following subparagraphs, the relevant election commission shall revoke its registration:

3.When failing to obtain a seat in the National Assembly after participating in an election of National Assembly members, and failing to obtain more than 2/100 of total number of effective votes.

Summary of the Decision

1.Whether the Cancellation Provision infringes on the freedom to form a political party

Any of the record or minutes made when the Cancellation Provision

had been first introduced by the Legislative Council for National

Security in 1980 or the minutes of the subsequent sessions of the National Assembly in the process of amendment to the Political Parties Act do not reveal the legislative purposes of the Cancellation Provision. Considering the freedom to form a political party guaranteed by Article 8 Section 1 of the Constitution and the legislative purpose of Article 8 Section 4 of the Constitution, any legislation excluding a political party from the process of forming political opinion by the people simply because it is a small party that fails to achieve a certain level of political support should not be allowed under our Constitution. Having said that, the legislative purpose of the Cancellation Provision can be considered legitimate to the extent that a political party that practically does not have any ability or will to participate in the process of people’s forming political opinions can be excluded from such a process in order to foster the development of party democracy. And cancelling the registration of a political party that has no members of the National Assembly or fails to obtain certain number of votes is an effective means to achieve the legislative purposes.

Meanwhile, different from the dissolution of a political party by a ruling of the Constitutional Court, when a political party’s registration is revoked pursuant to the Cancellation Provision, a substitute political party can be established upon the same or similar platform as the revoked political party and the name of the revoked political party can be used after a lapse of time as stipulated in the statutory provision. Even so, however, any provision that stipulates the revocation of political party’s registration should be legislated based on a strict standard within the necessary minimum scope because it deprives a political party of its existence, making it impossible for the political party to conduct any kind of political activities at all. And it is possible to come up with less restrictive measures to achieve the legislative purposes. For example, the cancellation of registration can be decided depending on the result of election after providing such a political party with several chances to participate in elections for a certain period of time or the cancellation of registration may be limitedly applied to

political parties that fail to fulfill the statutory requirements for registrationor have not participated in elections of the National Assembly members and others for a long time. In this regard, the Cancellation Provision does not satisfy the least restrictive means requirement.

Further, the aforementioned provision is unreasonable in that the registration of a political party which fails to attain a certain level of support in the elections of the National Assembly members is supposed to be cancelled no matter how it had been successful in the Presidential Election or local government elections. It is also problematic that newly established or small parties, frustrated by the Cancellation Provision, would not even venture into elections from the beginning.

For the foregoing reasons, the Cancellation Provision infringes upon the complainant’s freedom to form a political party, violating the rule against excessive restriction.

2.Whether the Prohibition Provision infringes on the freedom to form a political party

The Prohibition Provision prevents the name of a political party whose registration has been cancelled under the Cancellation Provision from being used as the title of a political party from the date of such cancellation of registration until the date of election of the National Assembly members first held due to the expiration of their terms. As the Prohibition Provision is premised on the Cancellation Provision, it also infringes upon the freedom to form a political party for the same reasons as reviewed above in the constitutionality of the Cancellation Provision.