A. Background ofthe Case
In this case, theConstitutional Court decided to dissolve the respondent (Unified ProgressiveParty) and strip its affiliated lawmakers of their National Assembly seats ongrounds that its objectives and activities are against the fundamentaldemocratic order under the Constitution.
The respondent was apolitical party created on December 13, 2011, by a merger of the DemocraticLabor Party, the People’s Participation Party, and the Alliance for theCreation of a New Progressive Party, whose establishment was led by the memberswho defected from the New Progressive Party.
The petitioner (theGovernment of the Republic of Korea), following the deliberation and resolutionby the State Council on November 5, 2013, filed this petition requesting the dissolutionof the respondent and removal of its affiliated lawmakers from NationalAssembly seats, arguing that the respondent’s objectives stated in the platformand the activities of its members including the affiliated lawmakers areagainst the fundamental democratic order.
B. Summary ofthe Decision
The ConstitutionalCourt decided to dissolve the respondent and strip its affiliated lawmakers oftheir National Assembly seats.
This case was the firstcase of party dissolution brought before the Constitutional Court. In thedecision thereon, the Constitutional Court applied its own interpretation onvarious requirements for party dissolution, as follows.
The party dissolutionsystem, which was often described by the German academic theory of defensivedemocracy, has the implication of party protection first of all, understood in ourhistorical context. The rationale is that, although the system was adopted in Germanybased on the lesson from the Nazi rule, our country introduced it as a productof contemplation of the dissolution of the Progressive Party. Nevertheless, itcannot be denied that the system also seeks the goal of realizing defensive democracy.
The “fundamentaldemocratic order” in Article 8 Section 4 of the Constitution, which is foundedupon the pluralistic view that believes in the autonomy of reason and presumesthat all political opinions have relative truth and rationality, indicates apolitical order composed of and operated by the democratic decision-makingprocess and freedom and equality that defy all sorts of violent, arbitrarycontrol and respect the majority while caring for the minority. Specifically,the key elements of the fundamental democratic order are: popular sovereignty,respect for fundamental human rights, separation of powers, and plural partysystem. Also, “against the fundamental democratic order” means having theconcrete danger of causing a substantial threat to the fundamental democraticorder, so party dissolution can only be justified when the principle ofproportionality is strictly observed.
Based on thisinterpretation of the requirements, the respondent’s objectives are against thefundamental democratic order. Considering all circumstances, such as theliteral sense of the respondent’s platform, the detailed process of itsadoption, and the perception about the platform and the direction taken by themembers who currently lead the respondent, it can be concluded that theobjectives of the respondent’s leading members are eventually aimed atachieving the North Korean style of socialism, which contradicts thefundamental democratic order in our Constitution.
Also, that some membersheld gatherings to plot treason can be considered part of the respondent’sactivities in light of the detailed circumstances behind the gatherings, theattendees’ position and status within the party, and the respondent’ssupportive attitude toward this case. Further, wrongful acts committed by the respondent,such as the illegitimate proportional primary, undermines democratic principles.
Based on the fact thatthat the objectives and activities of the respondent are against thefundamental democratic order, the Constitutional Court further examined whetherthe dissolution of the party is compatible with the proportionality principle.As a result, it concluded that the decision to dissolve the respondent is notin violation of the principle of proportionality in that the objectives andactivities of the respondent aimed at implementing the North Korean style of socialismcontain seriously unconstitutional elements; South Korea is in a uniquesituation where it faces confrontation with North Korea, a country that strivesto overthrow the government of its southern neighbor; there is no alternativeother than dissolution in removing the risk of the respondent; and the interestof safeguarding the fundamental democratic order outweighs the disadvantagecaused by party dissolution, namely the restraint on the respondent’s freedomto engage in party activities.
With the dissolution ofthe respondent, the Constitutional Court removed the affiliated lawmakers fromtheir National Assembly seats. The main reason was that, although there was noprovision determining whether or not the affiliated lawmakers lose their NationalAssembly seats, it would be impossible to secure the effectiveness of thedecision to dissolve the party unless its members were stripped of their NationalAssembly membership.
Justice Kim Yi-Su expressedhis dissenting opinion that it cannot positively be said that the respondentadvocates progressive democracy to pursue the North Korean style of socialism;the gatherings to plot treason are only meetings of some members of the party,not attributable to the respondent; and if not, the dissolution of therespondent is contrary to the proportionality principle.
Justices Ahn Chang-Hoand Cho Yong-Ho stated their concurring opinion that the progressive democracyadvocated by the leading members of the respondent is different from socialdemocracy, ultimately pursuing socialism in the North Korean style, and the respondent’sfederal unification plan only appears to be a strategy to realize suchsocialism.
C. Aftermath ofthe Decision
Regarding thisdecision, the then ruling party, the Saenuri Party, declared that it was a“stern judgment on the group that denied the Republic of Korea” and a“corollary”. This response was not greatly different from the tone of theconservative media (editorials in the Chosun Ilbo, the Dong-A Ilbo, etc.,December 20, 2014). Conservative groups also denounced the relevant UnifiedProgressive Party members to the prosecution for violation of the NationalSecurity Act.
On the other hand, theopposition party, the New Politics Alliance for Democracy, said, "We heavilyaccept the decision of the Constitutional Court, but seriously worry that thefreedom of political party was undermined.” Besides, some media were concernedabout a potential decline in democracy due to the dissolution decision(editorials in the Hankyoreh, the Kyunghyang Shinmun, the Hankook Ilbo, etc., December20, 2014).
The decision also ledto academic controversy: some were critical of the dissolution decision (KimJong-Cheol, Is the Constitutional Courtthe Sovereign Institution?; Lim Ji-Bong, An Analysis and Assessment on the Dissolution Decision of UnifiedProgressive Party by Korean Constitutional Court), but some favorablyunderstood the logic of the dissolution decision (Chang Young-Soo, Key issues in the Dissolution Decision of theUnified Progressive Party).
The ConstitutionalCourt rendered a ruling to correct some errors in the decision in the monthafter it was made. Just before that, there had been a Supreme Court ruling to acquitthe respondent’s affiliated National Assembly members indicted on the charge ofplotting treason in relation to their gatherings (but guilty of agitatingtreason). This set of circumstances was used as a pretext for an attack on thelegitimacy of the party dissolution decision. Thus, a petition for retrial wasfiled, but dismissed the next year (2015Hun-A20, May 26, 2015).
With the dissolution ofthe respondent, the remaining property escheated to the National Treasury, andthe establishment of any substitute political party similar to the respondentwas banned. Members who lost their National Assembly seats due to this decisionfiled a lawsuit seeking the confirmation of their National Assembly membership.However, it was dismissed at the first trial (Seoul Administrative Court2015Gu-Hap50320), and an appeal against such dismissal was rejected at thesecond trial (Seoul High Court 2015Nu68460). As a result, a final appeal wasmade to the Supreme Court (Supreme Court 2016Du39856).
Meanwhile, although theConstitutional Court in the above ruling did not take any action against the localcouncil members affiliated with the Unified Progressive Party, the NationalElection Commission resolved to retire the six proportional representativelocal council members affiliated with the Unified Progressive Party on December22, 2014, and then gave notice thereof.
Against this resolution,the local council members filed a lawsuit seeking the cancellation of theretirement disposition and the confirmation of their local council membership,but the court ruled that the retirement resolution and notification made by theNational Election Commission were only actions inside the administrative agencyand had no legal effect. In addition, the court accepted their request forprovisional disposition to suspend the effect of retirement disposition; thus,they joined the People’s United Party to continue serving as local councilmembers.