(영문) 서울행정법원 2008.12.17.선고 2008구합19741 판결

The defendant's assistant intervenor (the consolidated Democratic Party before the change of party name; hereinafter referred to as the "participating") on February 18, 2008 confirms that the registration disposition is invalid.

Reasons

1. Details of the disposition and facts of recognition;

A. At the rally for the formation of a political party on August 5, 2007, the former Grand Democratic Party adopted the party constitution while 6,060 representatives, 4,579, and elected the highest committee members composed of one representative of the political party, 7 highest committee members (5 highest committee members and two designated highest committee members), and the highest committee members composed of the representatives within the council (five highest committee members and two designated highest committee members). As to the composition of the Standing Central Committee, it delegated the authority of the Standing Central Committee to the highest committee and delegated the composition of the Central Committee to the Standing Central Committee before it is constituted, and delegated the organization of the Central Committee to the Standing Central Committee.

B. As the representative organ (Chapter 3) under the party constitution of the former Large Democratic Party, there is a National Assembly, the Central Committee, the Central Committee, and the executive organ (Chapter 4) shall represent the party, exercise overall control over the party affairs, and there is a highest committee consisting of the representative of the political party (Article 26(1)), five representative of the party, the internal representatives, and the highest committee of five members and the highest committee of the party members designated by the representative of the party, the internal representatives, and the elected representative of the party from among the full-time members after consultation with the highest committee. The parts related to this case in the party constitution of the former Large Democratic Party are as follows.

Part III representative organ

SECTION 1. National Representatives

Article 16 (Authority)

(1) The National Assembly of Representatives shall have the following authority:

1. Formation and amendment of the party constitution;

c. Election of the representative of the political party and the highest members;

4. Resolution on matters concerning the dissolution and merger of the political party; and

(2) Where it is impracticable to call a national representative competition, the functions referred to in the subparagraphs of paragraph (1) shall be performed vicariously.

of the corporation.

Article 17 (Convocation)

(2) A temporary national representative meeting shall be convened by a resolution of the Central Committee or at the request of at least 1/4 of the registered representatives of the national representative meeting within one month: Provided, That the chairperson shall convene the meeting within a specified period, if requested to convene the meeting.

Section B. Central Committee

Article 20 (Functions)

(1) The Central Committee shall have the following functions:

1. Adoption and change of the basic policy of the party;

2. Resolution on the agenda delegated by the National Assembly of Representatives, such as an amendment to the party constitution and party regulations;

3. Vicarious performance of functions of a national representative meeting, where it is impracticable to convene a national representative meeting;

Article 24 (Authority)

(1) The Standing Central Council shall have the following authority:

5. Convocation and resolution of the Central Committee;

6. Handling of matters delegated by the National Assembly of Representatives or the Central Committee;

CHAPTER 14.Supplementary rules

Article 148 (Merger, Dissolution, and Liquidation)

1. (1) When a party is merged with another political party, a resolution of the National Assembly of Representatives or the delegated agency thereof shall be required: Provided, That the Central Committee shall be the number of terms of office where there are unavoidable circumstances making it impracticable to hold a national Assembly of Representatives.

Addenda

Article 4 (Transition Provisions Related to Change of Delegated Agency in Case of Merger with Other Political Parties)

Notwithstanding the provisions of Article 148 (1) of the party constitution, where a party merges with another political party by the time of the first rally for national delegates convened after the rally for the formation of a political party, the delegated agency shall be the Standing Central Committee, if the party merges with the other political party.

C. On February 13, 2008, the highest committee of the former Deputy Democratic Party passed a resolution on the merger with the former Democratic Party as of February 13, 2008, in which the Standing Central Committee was not constituted. On the same day, the former Democratic Party held the Central Committee on the same day, and resolved on the merger with the National Assembly, and re-elections specific authority for the merger to the Central Committee.

D. On February 17, 2008, each highest committee of the former Deputy Democratic Party and the former Democratic Party shall hold a joint conference of the two parties among the 16 members of the National Assembly 18 members of the total number of 18 members of the National Assembly hall, and the name of the party shall be determined as the integrated democratic party (i.e., one democratic party), and the name of the party shall be determined as the joint representative, and the name A and B shall be elected as the joint representative, and the party constitution shall be adopted, and the merger of the two parties shall be decided by adopting the platform and party constitution.

E. On February 18, 2008, A, as the representative of the intervenor to which the former Consolidated Democratic Party and the former Democratic Party are reasonable, filed an application for registration of the establishment of a central party (hereinafter referred to as the "application for registration of the establishment of a central party") with the Defendant, along with the details of Article 12(1) of the Political Parties Act (wholly amended by Act No. 8881, Feb. 29, 2008; hereafter referred to as the "Act") other than those provided for in Article 12(1) of the Political Parties Act (wholly amended by Act No. 8881, Feb. 29, 2008; hereafter referred to as the "Act"). At the time, the Plaintiffs were the central member or party member of the former Consolidated

F. On February 18, 2008, the Defendant determined that the instant application for registration satisfies all formal requirements, accepted the said application for registration and registered it on the registry, and issued a registration certificate to the intervenors (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to Eul 4-3, Eul evidence 1 to Eul 3, and Eul evidence 1 to Eul 3, the purport of the whole pleadings, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Plaintiffs asserts that the defect of the instant disposition made by the Defendant is null and void due to a significant and apparent reason as follows.

(1) A newly established political party under the law is a combination of the dissolution of an existing political party and the formation of a new political party. In the case of a newly established political party, the procedure under Article 12(2) of the Act, which was prepared in order to disclose to the public the democracy of the formation and justice, should be followed in addition to the procedure prescribed in Articles 19 and 20 of the Act, and as a result, the former Integrated Democratic Party did not hold a rally in the process of a newly established political party, the application for registration of this case was filed under the omission of materials and minutes concerning whether to disclose a rally for the formation of a political party, which is the necessary attached matters to the application for registration under Article 12(

(2) The highest committee of the former Consolidated Party does not belong to the National Assembly of Representatives or its delegated agency, which is a decision-making body for a merger as provided in Article 148 of the party constitution. In other words, the former Consolidated Party decided to act on behalf of the Standing Central Committee prior to the formation of the Standing Committee at the creative rally, but it did not have to act on behalf of the Standing Committee on behalf of the Standing Committee, but it did not have to act on behalf of the Standing Committee that was delegated with the formation of the Consolidated Party. Thus, the highest committee of the Consolidated Party did not act on behalf of the Standing Committee without going through the procedures for gathering the opinions of the party members. Thus, the resolution of merger based on this is null and void.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Determination

(1) Article 8 of the Constitution guarantees the freedom of establishment of a political party and the plural party system (Paragraph 1), Article 8 of the Constitution requires that the objective, organization, and activities of a political party be democratic (Paragraph 2), and imposes a duty to protect a political party under the conditions as prescribed by Act on the State (Paragraph 3). In addition, the Act was enacted for the purpose of contributing to the sound development of democratic politics by securing an organization necessary for a political party to participate in the formation of a decent will of the people, and by guaranteeing the democratic organization and activities of a political party. The Act adopted a system of registration of a political party by which a political association, which is the party, satisfies certain legal requirements, applies for registration with the competent administrative agency, and if this requirement is met, it can be easily confirmed whether a political association is harmful to a political party, and the formal rights and obligations granted to a political party can be determined relatively more clearly, and even if it fails to comply with the requirements of the Constitutional Court for the examination, it is possible to grant a request for registration of a political party to the defendant without complying with the requirements of the Constitutional Court.

(2) First of all, it is difficult to examine whether there is a defect in the procedure for the application for registration of a political party in this case, ① separate from the provisions of Chapter 2 of the Act Articles 4 through 18 of the Establishment of a political party, Chapter 3 Articles 21 of the Articles 19 through 19 of the Merger of Political Parties, which separate from the case of a newly established merger of political parties into a new name, and the case of a merger of political parties into a new one. ② Articles 19, 1, 20, 1 and 20, 20 of the Act stipulate the procedures, requirements, effects, etc. of the merger of political parties by distinguishing the case of a newly established merger of political parties from the case of a newly established one under the conditions as to the merger of political parties, the merger of political parties may be combined with the defendant by a resolution of a joint meeting of the representative organs of such political parties or their delegated agencies, and the establishment of a new political party shall be deemed as satisfying the requirements for registration of a new political party under Article 12 of the Act.

However, in this case, as the representative of the intervenor on February 18, 2008 and the defendant filed the application of this case with the representative and executive officer's written consent to take office, copy of joint meeting minutes, etc. in addition to the matters stipulated in Article 12 (1) of the Act as the representative of the intervenor on February 18, 2008. Thus, the application of this case satisfies the requirements for registration application under Article 20 (1) of the Act. Thus, this part of the plaintiff's assertion is without merit.

(3) Next, with respect to whether the highest committee for the new democratic party was merged without authority, the following circumstances revealed in the above recognition, i.e., Articles 16 and 148 (1) of the former Party constitution, where the former Party has the authority to decide on the matters concerning the dissolution and merger of the parties, and the party is merged with other political parties, a resolution of the National Assembly or the number of such parties shall be required to be made by the Central Committee; however, Article 4 of the Addenda to the above party constitution provides that if there is an inevitable reason that it is difficult to hold the National Assembly, the Standing Committee is merged with the delegated authority of the Central Committee for the formation of the Central Committee on behalf of the former Party by the time of merger with other political parties, and Article 148 (1) of the former Party constitution provides that the Central Committee shall be entrusted with the authority of the Central Committee on behalf of the latter at the time of merger with the former Party.

(4) Accordingly, the plaintiffs' assertion is without merit, and the disposition of this case is lawful.

3. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge shall transfer the number of judges

Judges’ Losses

Judge Lee Yong-soo

Site of separate sheet

Related Acts and subordinate statutes

Political Parties Act (wholly amended by Act No. 8881 of February 29, 2008)

Article 10 (Opening Assembly for Formation of Political Party to Public)

(1) The rally for the formation of a political party shall be open to public.

(2) A preparatory committee for the formation of a central party shall, in order to disclose a rally for the formation of the political party, hold and publicly announce the meeting in a daily newspaper under Article 2 (Definition of Terms) of the Act on Freedom of Newspapers, etc. and Guarantee of Functions, not later than five days before the date of the

Article 12 (Matters concerning Application for Registration by Central Party)

(1) Matters concerning application for registration by central authority shall be as follows:

1. The title of the political party (including its abbreviation, when one is resolved upon);

2. Location of its office;

3. The party platform (or basic policies) and party constitution;

4. Names and addresses of the representative executives;

5. The number of party members;

6. Computerization of the seal of the political party (the seal of the political party) and the official seal of its representative.

7. Location and name of the City/Do party;

8. Name and address of the representative of the City/Do party;

(2) An application for registration under paragraph (1) shall be accompanied by a written consent to the appointment of the representative and the executive members, evidentiary materials regarding the public announcement in newspapers under Article 10 (2) and a copy of the minutes of the rally for formation of a political party.

Article 15 (Examination of Application for Registration)

The election commission in receipt of an application for registration shall not refuse it so far as it fulfills the formal requirements: Provided, That when the type requirements have not been fulfilled, the commission shall order that supplements be made by providing for a reasonable period, and when an order for supplements has not been complied therewith on more than two occasions, the commission may reject the relevant application.

Article 19 (Merger of Political Parties)

(1) When a political party is merged under a new name (hereinafter referred to as a "party newly established by merger"), or another political party merges into another political party (hereinafter referred to as a "merger by merger"), it may be merged under the resolution of a joint meeting of the representative agency of the political party to be merged or its mandatory agency.

(2) The merger of political parties shall come into existence upon the registration with or reporting to the plenary session committee under the provisions of Article 20 (1), (2) and (4): Provided, That when political parties merge from the date on which the application for registration of candidates for an election under Article 2 of the Public Official Election Act (hereinafter referred to as "election for public office") commences to the election day, such merger shall take effect within 20 days after the date on which the election commences.

(3) Where a merger of political parties has been constituted under paragraphs (1) and (2), the Si/Do party to which he/she belongs shall be deemed to have reasonable: Provided, That in cases of a merger of parties, the City/Do party shall make a request for registration of changes through the reorganization of the City/Do party within three months from the date of application for registration of merger of parties.

(4) Where a newly established political party fails to apply for a change of registration within the period under the proviso to paragraph (3), the relevant City/Do party shall be deemed extinguished on the date following the date of expiration of such period.

(5) Political parties newly established by or surviving a merger shall succeed to rights and duties of the political parties prior to the merger.

Article 20 (Application for Registration in Case of Merger of Political Parties)

(1) In the case of a newly established merger of political parties, the representative of a political party shall file an application for registration pursuant to the provisions of Article 12 with the National Election Commission within 14 days from the date the resolution of a joint meeting is adopted under Article 19 (1), attaching a copy of the relevant minutes, to the National Election Commission.

(2) In the case of paragraph (1), the matters under Article 12 (1) 7 and 8 may be supplemented within 120 days from the date on which an application for registration is filed. (3) In the case of paragraph (2), if no supplementation is made within the said period, the National Election Commission shall order that the supplementation be made at least twice with a reasonable interval, and if no supplementation is made, the relevant registration may be revoked pursuant to Article 44 (1).

(4) The representative of a political party surviving a merger as a consequence of the merger shall report to the National Election Commission on the reason for the merger, together with a copy of the minutes within 14 days from the date of resolution of the joint meeting under Article 19 (1).

Article 21 (Party Members involved in Party Merger)

In the case of a merger of parties under Article 19 (Merger of Political Parties), the party members of the merged political party shall become the party members of the merged political party. In this case, the written application prior to the merger shall be regarded as the written application for joining the merged political party.

Political Party Affairs Management Regulations

Article 10 (Handling Application for Registration of New Establishment of Central Party)

(1) An application for registration of a newly established merger of central parties under paragraph (1) of Article 20 of the Act shall be made in attached Form 13.

(2) When the National Election Commission receives an application for registration of a new merger of central parties under paragraph (1), it shall accept it within seven days, and handle the affairs as prescribed in the following subparagraphs:

1. Registration in the registration ledger in attached Form 7;

2. Delivery of registration certificate; and

3. Cancellation of the registration ledger of the political party before the merger.

4. Public announcement on the registration of merger of parties; and

5. Notification to the City/Do election commission.

Article 12 (Handling of Affairs of City/Do Parties Due to Merger of New Cities/Dos)

(1) Upon receipt of a notification of the establishment of a new merger from the National Election Commission, a City/Do election commission shall, without delay, handle administrative affairs of the City/Do party related to the City/Do party as follows:

1. When there are two or more Si/Do parties belonging to a political party prior to a merger in the same Si/Do, the name of Si/Do party in each Si/Do party registry shall be changed into the name of Si/Do party in each City/Do party registry and the registration certificate of City/Do party shall be reissued.

2. If only one City/Do party belonging to a political party prior to a merger in the same City/Do, the name of the City/Do party in the City/Do party registry shall be changed to the name of the City/Do party in which the name of the City/Do party is newly established, and the registration certificate of City/Do party shall be reissued.

(2) In cases falling under paragraph (1) 1, the representative of each City/Do party shall be deemed the co-representative of each Si/Do party newly established by the newly established political party, the change of which is changed under the proviso to Article 19 (Merger of Political Parties) (3) of the Act. The last day.

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