Constitutional Court Rules 5-4 Upholding 'Ban on Regional Parties' Clause in Political Parties Act

5 Judges Express "Violation of Excessive Fines Principle" Opinion
One Short of 6 Required for Unconstitutionality Quorum
Ban on Party Name Use and 1,000 Local Party Members Clause Upheld

The Constitutional Court has ruled that the current Political Parties Act provisions, which require nationwide organization for party establishment and thus do not allow so-called 'regional parties,' are constitutional.

Among the nine constitutional justices, five, a majority, found the provisions unconstitutional, but since the required quorum of six justices for an unconstitutional ruling was not met, the decision was declared constitutional.

Constitutional Court of Korea, Jaedong, Jongno-gu, Seoul.
[Photo by Yonhap News]

According to the legal community on the 4th, the Constitutional Court made a constitutional (dismissal) decision with a 5 (unconstitutional) to 4 (constitutional) vote in a constitutional complaint and constitutional review case concerning Articles 3, 4, and 17 of the Political Parties Act.

Articles 3 and 4 of the Political Parties Act respectively stipulate the composition and establishment requirements of political parties. Article 17 sets the number of city/provincial party branches a party must have.

Article 3 (Composition) of the Political Parties Act states, "A political party shall consist of a central party located in the capital and city/provincial parties located in each special city, metropolitan city, and province." Article 4 (Establishment) Paragraph 1 states, "A political party is established when the central party registers with the National Election Commission," and Paragraph 2 states, "The registration in Paragraph 1 must meet the requirements of Article 17 (Legal Number of City/Provincial Parties) and Article 18 (Legal Number of Party Members in City/Provincial Parties)." Article 17 (Legal Number of City/Provincial Parties) stipulates, "A political party must have at least five city/provincial parties."

Thus, the Political Parties Act requires that only parties with a central party and at least five city/provincial parties can register their central party with the National Election Commission to become a political party. These provisions are commonly referred to as the "nationwide party provisions."

Direct Action Yeongdeungpo Party, Gwacheon Citizens' Political Party, and Eunpyeong Dandelion Party applied for party registration to field candidates in the 8th simultaneous local elections held last June, but their registration was rejected on the grounds that "the Political Parties Act does not provide for regional parties." They filed constitutional complaints claiming that these provisions violated their freedoms of political expression, party establishment, party membership, party activities, equality rights, suffrage, and the right to hold public office. The corporation named "Feminism Party Founding Committee" also filed a constitutional complaint for the same reason.

Regarding these nationwide party provisions, Justices Lee Eun-ae, Lee Jong-seok, Lee Young-jin, and Kim Hyung-doo expressed opinions supporting constitutionality. The other five justices found them unconstitutional, but since the required quorum of six justices for an unconstitutional ruling was not met, the four justices' constitutional opinions became the court's official opinion.

These justices stated, "The political culture overly dependent on regional ties is particularly problematic in our political reality, unlike other countries, and allowing regional parties could deepen regionalism and exacerbate conflicts of interest between regions. Therefore, it is necessary to secure a nationwide scale when setting the composition and organizational requirements of political parties," adding, "Considering this political reality and the number of existing parties in our country, the nationwide party provisions cannot be seen as violating the freedom of political parties under the principle of proportionality."

The other five justices argued that the nationwide party provisions violate the principle of proportionality and infringe on the petitioners' freedom of political parties and thus are unconstitutional. When determining whether fundamental rights are infringed, the Constitutional Court applies four criteria under the principle of proportionality: legitimacy of purpose, suitability of means, minimal infringement, and balance of interests.

In this case, Justices Yoo Nam-seok, Moon Hyung-bae, and Jung Jung-mi recognized the legitimacy of purpose and suitability of means of the nationwide party provisions but found that they violate the minimal infringement criterion and the balance of interests between the public interest protected by the provisions and the private interests infringed.

These justices pointed out, "The problem of deepening regionalism caused by the emergence of regional parties should be addressed through political-cultural approaches rather than party regulation. Given the development of information and communication technology enabling political participation nationwide and the expansion of local autonomy, it is not necessary for all parties to have nationwide organizations to reflect the will of all citizens through party activities."

They also stated, "In the reality where politics is dominated by two major parties, the nationwide party provisions set high barriers preventing regional, minor, or new parties from entering the political arena, excluding parties that can actively reflect political opinions on local issues, thereby risking blocking grassroots democracy," adding, "It does not seem difficult to devise measures to minimize fundamental rights infringement caused by the nationwide party provisions, such as differentiating between established and new parties by varying the location of central and city/provincial parties and the number of city/provincial parties required."

Therefore, they concluded, "The nationwide party provisions violate the principle of proportionality and infringe on the freedom of political parties."

Justices Kim Ki-young and Lee Mi-seon found it difficult to even recognize the legitimacy of the legislative purpose or the suitability of means of these provisions.

These two justices stated, "Considering the purpose of Article 8 of the Constitution concerning political parties, state interference or infringement on the establishment, organization, and activities of political parties is generally not permitted," adding, "It cannot be said that a nationwide organization is necessary to perform the core function of political parties in participating in the formation of the people's political will, nor does the Constitution require a nationwide organization."

They further argued, "Nevertheless, the nationwide party provisions uniformly require all parties to have nationwide organizations, excluding regional, minor, or new parties. This denies the freedom of political parties under Article 8 Paragraph 1 of the Constitution, making it difficult to recognize the legitimacy of the legislative purpose and the suitability of means."

Meanwhile, the Constitutional Court unanimously ruled constitutional on Article 41 Paragraph 1 (Prohibition of Use of Similar Names) and the relevant part of Article 59 Paragraph 2 (False Registration Application Offense) of the Political Parties Act, which prohibit the use of the term "party" in the name by groups not registered as political parties, in a constitutional review case requested by the 'Social Transformation Workers' Party,' which was prosecuted for using the party name without registration.

Additionally, in a constitutional complaint case filed by the "Feminism Party Founding Committee" challenging Article 18 of the Political Parties Act, which requires each city/provincial party to have at least 1,000 members for party registration, the court ruled constitutional (dismissal) with a 7 (constitutional) to 2 (unconstitutional) vote.

This content was produced with the assistance of AI translation services.