A. Background of the Case
In this case, the Constitutional Court declared that the provision of the Political Funds Act (hereinafter referred to as the “Provision on Prohibition of Donations to Political Parties”) that prohibits donations to political parties and imposes criminal punishment for a violation of such prohibition does not conform to the Constitution, ordering the tentative application of the provision until June 30, 2017, the deadline for the legislature’s amendment thereof.
The political donation system had existed since 1965, but was abolished in 2006 due to the aftermath of the campaign finance scandal in the 2002 Presidential Election (the so-called “Oh Se-hoon Law”). Thus, only the candidates for president and National Assembly members and the incumbent National Assembly members were allowed to collect political funds through their supporters’ associations, and the collection of political funds through their political parties was prohibited.
As this system of donation through party support association was abolished and political parties could no longer receive donations directly from individuals, the petitioners received political funds in an unlawful manner by exploiting the “member support” system under which party members have neither rights nor obligations as such. Accordingly, they were indicted for receiving political funds in a manner not prescribed by the Political Funds Act, and thus filed this constitutional complaint.
B. Summary of the Decision
The Constitutional Court ruled that the Provision on Prohibition of Donations to Political Parties is not conformable to the Constitution, for the following reasons.
Transparency in the procurement of political funds by political parties can be adequately ensured through measures, such as limiting the amount of donation or fund-raising or disclosing donation records, without fundamentally barring political donations by an ordinary citizen to a political party.
As, out of political funds, membership fees can only be paid by a holder of party membership, there is no way for a public official who is prohibited from joining a political party under the Political Parties Act to offer financial support to a political party which he or she supports. Also, the general donation system under which the National Election Commission distributes and pays donations to each political party according to the distribution ratio of government subsidies is completely different from the system under which a donor gives financial support to a certain political party he or she supports, so it is not any adequate substitute for a party supporters’ association.
Thus, the Provision on Prohibition of Donations to Political Parties, which completely prohibits financial support for a political party in party democracy, infringes on the freedom of political party activities to finance itself and the citizens’ freedom of political expression.
Justice Cho Yong-Ho stated his dissenting opinion, as follows. There are various ways in which an ordinary citizen can give financial support to a political party. For example, he or she can express his or her own political support for a certain political party by providing donations to the support association of an individual politician of the political party he or she supports, or join a political party and pay membership fees, or otherwise entrust donations to the National Election Commission. Therefore, the Provision on Prohibition of Donations to Political Parties cannot be concluded to be against the Constitution.
C. Aftermath of the Decision
This decision was welcomed by minor political parties receiving relatively small state subsidies (KBS, December 28, 2015), but there were some opinions that, in light of our political reality, it would be important to complement institutional devices to ensure the transparency and independence of party operations, such as the disclosure of donations and disbursement details and the reduction of state subsidies (Lee Jae-Kyo, Revival of Political Party Sponsorship ？？？ Transparency is the Key, the Munhwa Il-bo, December 28, 2015).
Reflecting the intent of this decision, the National Assembly amended the Political Funds Act on June 30, 2017, as per Act No. 14848, allowing a party support association to be established. However, considering the previous abolition of the relevant system, it provided that a party support association be established only in the central office of a political party and the association’s annual fundraising ceiling and a donor’s annual contribution ceiling be set lower (the former was lowered from 13 billion to 5 billion won, the latter from 10 million to 5 million won) than those in the previous system abolished.