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Press Release

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  The Constitutional Court of Korea on 19 December 2014 held that the respondent, the Unified Progressive Party, shall be dissolved and that Members of the National Assembly affiliated to the said party shall lose their seats, by a 8:1 majority vote. 
  The activities of the respondent party, which include assemblies tp discuss insurrection with the hidden objective of realizing North Korean style socialism, is in violation of the basic democratic order. In order to eliminate the specific danger of the respondent to cause substantial threat to society, there exists no less measure than to dissolve the said party. Therefore, the decision to dissolve the respondent party is not against the principle of proportionality. under the exceptional circumstances in which the Court decides to dissolve the unconstitutional political party, the status of the Members of the National Assembly as representatives of the people cannot but be sacrificed. The Court finds that the forfeiture of seats of the National Assembly members affiliated to the respondent party is a basic effect recognized by the essence of the system on dissolution of political parties.
  In contrast, the dissenting opinion of Justice Kim Yisu is that the requirements of the dissolution of a political party should be construed and applied strictly. There is no sufficient evidence on the concealed objectives of the respondent. The objectives of the respondent proclaimed by the platform of the political party including progressive democracy is not against the democratic order. Certain activities associated with insurrection by assemblies of the Kyounggi branch which is in violation of the democratic order cannot be attributed to the responsibility of the party. Other activities of the respondent also do not violate the basic democratic order.
  Meanwhile, the Court the dismissed the petitioner's motion for preliminary injunction of restriction on party activities.
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▣ Case Introduction and Subject Matter of Review

 ● Case Introduction
  - Petitioner on 5 November 2013 requested adjudication on dissolution of the respondent party and forfeiture of seats of the National Assembly members affiliated to the respondent party, alleging that the objectives and activities of the said party are against the basic democratic order.

 ● Subject Matter of Review
  - Whether the objectives or activities of the respondent party are against the basic democratic order.
  - Whether to order the dissolution of the respondent and whether seats of the National Assembly members affiliated to the respondent party shall be forfeited.

※ The objectives and activities of the Democratic Labor Party, which was succeeded by the respondent party, shall be used as material for judgment insofar as relevant to the objectives or activities of the respondent party. But the objectives and activities of the Democratic Labor Party itself is not subject to review in this case.   

 
▣ Summary of the Opinion

 ● Justiciability of the request- Justiciable
  - The Prime Minister shall act for the President when the President is abroad on official duty. Therefore the request for adjudication on dissolution of the  respondent party decided by the State Council chaired by the Prime Minister is not against the law.
  - Matters referred to the State Council for deliberation are subject to the deliberation of the council of vice Ministers, unless it is a matter of emergency.  The judgment on the emergency of the matter lies within the discretion of the government. The Court does not find that there was an abuse or misuse of discretionary power in deciding that the request for adjudication on dissolution of the respondent party was of an emergency nature, considering that prosecution on members of the National Assembly affiliated to the respondent party on charges of insurrection had been initiated. 

 ● Dissolution of a Political Party and its Requirements

  ○ Dissolution of a political party
    □ The dissolution of a political party should be understood as the normative will of the constituent power to guarantee the privilege of political parties, especially the activities of the opposing parties as critics of government. While this system recognizes the freedom of the political party regarding its activities, there also exists constitutional limits, that the activities of the political party may not violate the basic democratic order.  

  ○ Requirements to dissolve a political party
    □ Either one or both of the objectives or activities of the political party shall be in violation of the basic democratic order. 
    □ The 'basic democratic order' stipulated in Article 8 of the Constitution is premised upon the pluralistic view of the world which assumes respect for individual intellect and that all political ideals have verity and rationality. The 'basic democratic order' rejects violent or arbitrary rule. It is a political order constituted and operated by the basic principle of democratic decision making which respects the majority yet is considerate of the minority, and the basic principles of freedom and equality. 
    □ Political parties are entitled to freely pursue political ideals of a diverse spectrum as long as they do not deny the basic democratic order. 
    □ Violation of the basic democratic order does not merely mean a simple breach of or conflict with the basic democratic order. The objectives or activities of the party should incur specific danger to cause substantial threat to society.
    □ Enforced dissolution of political parties is a fundamental restriction on the freedom of activities of the political party, which is an essential political right. Therefore the principle of proportionality prescribed in Article 37 Section 2 of the Constitution must be satisfied.

 ● Whether the objectives or activities of the respondent party are against the basic democratic order

  ○ Objectives of the Respondent Party
    □ The platform of a political party is generally coded to be abstract and contains diverse meanings. Progressive democracy, which the respondent asserts as a guiding principle does not, in itself, hold specific contents.
    □ Progressive democracy was adopted into the platform of a political party by the 'Jaju'(translated as 'self reliance') faction of the party.
    □ The 'Jaju'(translated as 'self reliance') faction is affiliated to the so-called  National Liberation(NL) front. They understand our society as a semi- feudal or semi-capitalistic society subordinated to the imperialism of the United States and assert that a peoples' democratic revolution for national liberation is needed. They are distinguished from the People's Democracy (PD) front, or the 'equality faction', which understands our society as a neo-colonialistic, state monopolistic capitalism which needs to overcome the class-ruled system.
    □ The leading influence of the respondent, consisted of major members of the East Kyeongi Alliance, Gwangju Geonnam Alliance, Busan Ulsan Alliance, which pursue progressive democracy, and other party members who share the same political ideals are all affiliated to the 'Jaju'(translated as 'self reliance') faction. They have led the respondent party according to their principles in deciding important matters such as party officials. 
    □ The leading influence of the respondent, through proposing  'self-reliance·democracy·unification' in groups such as Democratic Revolution Party, Youngnam Committee, Silchoen Solidarity, Ilsimhoei, and Hanchung, have sympathized with the ideals of North Korea, followed the 'Juche' ideology of North Korea, and their activities have been in affiliation with North Korea. They have blindly supported North Korea while overly criticising the government in issues regarding North Korea. A majority of the respondent also attended assemblies led by Representative Lee Seokgi(on trial for charges related to insurrection) and have actively supported those charged. 
    □ The leading influence of the respondent see our society as pariah capitalism or colonialistic anti capitalism, subordinated to foreign powers.   They also see the free democratic system as a capitalist class regime where the privileged ruling class has seized power, have exploited and abused the people and substantially extorted the sovereignty of the people, resulting in a systematically unequal society. The leading influence of the respondent assert that in order to solve such contradictions of the free democratic system, we need to transform into a popular sovereignty. A prerequisite is national liberation, they argue, warranting a peoples' revolution for national liberation. The leading influence of the respondent has proposed progressive democracy as an interim government on the way to a stabilized socialistic system from a free democratic system. Meanwhile the leading influence of the respondent pursue unification in the federal system. After unification under a low level federal system, unified Korea is to head towards a socialist system via an interim progressive democratic system. 
    □ The leading influence of the respondent is under the awareness that our society is a backward society where only the privileged ruling class exercise sovereignty. In case mass struggle develops into an overall resistance where the right of resistance is exercised, they plan to seize power by overthrowing the free democratic system through violence including the use of armed forces and amend the Constitution to form a new progressive democratic system. The position of the leading influence of the respondent have been brought to life in the insurrection related trial of Representative Lee Seokgi.

  ○ Activities of the Respondent Party
    □ Attendees of the assemblies on insurrection etc. including Representative Lee Seokgi are major members of the East Kyeongi Alliance. They follow the 'Juche' ideology of North Korea and understand the current state of affairs as war. Under the leadership of Representative Lee Sukgi, they met to discuss ways to exercise methods of violence, such as destruction of key national infrastructure, production and seizure of weaponry, disruption of communication in case war breaks out, in order to support North Korea.  
    □ Considering the details of holding the assemblies, the status and role of the attendees in the respondent party, the assemblies being held by the leading influence of the respondent, the role of Representative Lee Seokgi, leader of the assemblies as leader of the East Kyeongi Alliance, the support and protection on the part of the respondent party regarding  Representative Lee Seokgi's insurrection related charges, the Court deems the aforementioned assemblies as attributable to the activities of the respondent party.
    □ Moreover, the illegitimate primary in selecting proportional representatives, the violent incident of the central committee, manipulation of public poll incident in Gwanak district constituency show that members of the respondent party sought to secure election of certain candidates through undemocratic and violent methods other than debate and voting of members. This corresponds to a vacating of the election system and damages the principle of democracy.

  ○ The real objectives and activities of the respondent
    □ The leading influence of the respondent aims to accomplish progressive democracy through violence, based on which they seek to achieve reunification and, ultimately, socialism. They are followers of North Korea, and the progressive democracy they pursue is overall the same or very similar to the North's revolutionary strategy against South Korea in almost all respects.
    □ The leading influence of the respondent advocates the positions of North Korea in pursuing revolution under the theory of people's democracy revolution and denies the legitimacy of the Republic of Korea as displayed by the acts of refusing the national anthem and not raising the national flag. Such tendency is clearly shown in the Lee Seokgi et al. insurrection related case. 
    □ Considering these circumstances and the fact that as the leading influence of the respondent has control over the respondent, their objectives and activities are attributed to the objectives and activities of the respondent,  the true objectives and activities of the respondent is first to realize the progressive democracy by using violence and ultimately to realize North Korean style socialism.

  ○ Whether the respondent's objectives or activities violate the basic democratic order
    □ The socialist regime of North Korea fundamentally contradicts South Korea's basic democratic order guaranteed by the Constitution in that it accepts the political line proposed by the Workers' Party of Korea as the absolute good. It pursues as the essence of governance the dictatorial style of people's democracy, in connection with the specific class line of the party, and the one person dictatorship on the basis of the leader theory. In this regard, it fundamentally contradicts with the basic democratic order under the Constitution. 
    □ The respondent argues that in order to realize progressive democracy, the free democratic regime can be overthrown by the exercise of violence including all-people's resistance or exercise of the right of resistance. This directly conflicts with the basic democratic order, which rejects any violent and arbitrary rule and adopts as the basic principle democratic decision making that respects the majority yet is considerate of minorities. 
    □ The activities of the respondent including insurrection attempts, illegitimate primary in selecting proportional representatives, violence in the central committee, manipulation of public poll incident in Gwanak district constituency deny the national existence, parliamentary system, rule of law, and election system in terms of substance. In terms of their means or nature, they are also contrary to the ideas of democracy since violence, hierarchy, etc. are actively used to serve their purpose.
    □ The respondent had an ulterior motive to achieve North Korean socialism and has been engaging in activities such as convening meetings to discuss insurrection, illegitimate primary in selecting proportional representatives, or violence in its central committee. These activities are highly likely to be repeated in similar circumstances. Furthermore, in light of the pro-North Korean character of the leading influence of the respondent, a number of activities of the respondent have exposed specific danger of substantial threat to the basic democratic order.  

  ○ Whether the principle of proportionality is satisfied
    □ The respondent has attempted to damage the basic democratic order in an active and organized manner thereby undermining and abolishing its foundation. Therefore it is necessary to dissolve the political party for the purpose of promptly removing the possible risk therein.
    □ It is also required to consider the unique situation of the Republic of Korea in which the country faces confrontation with North Korea, an anti-government force that is trying to overthrow the Korean government according to its revolutionary strategy against the South.
    □ Although criminal punishment can be imposed on individuals when they are convicted, punishment alone does not eliminate the unconstitutional nature of the entire political party. The leading influence of the respondent may still immediately establish and implement policies that are against the Constitution at any time. Therefore, there is no way other than to dissolve the political party in order to remove the risk inherent in the respondent that works, in the disguise of a legitimate political party, to destroy the basic democratic order while receiving considerable amounts of political subsidies funded by taxation.
    □ The importance and the interest of safeguarding the basic democratic order by dissolving the political party far outweighs the disadvantage given to the respondent through its dissolution, namely the fundamental restraint on the respondent's freedom to take part in political party activities or partial restriction on democracy.
    □ Consequently, the decision to dissolve the respondent is an inevitable solution to effectively remove the risk posed to the basic democratic order and is justified by Article 8 Section 4 of the Constitution. Therefore it does not violate the principle of proportionality.

 ● Whether seats of the National Assembly members affiliated to the respondent party shall be forfeited-forfeited

  ○  Representatives of the people and binding to the party
    Members of the National Assembly act as representatives of the people while also acting as representatives of the political party speaking for the political ideals thereof. Article 192 Section 4 of the Public Election Act stipulates that when proportional representatives desert form the register of the party for reasons other than dissolution of the party shall lose their seats in the National Assembly. This regulation is also construed that when a party dissolved voluntarily, the seats of proportional representatives are not to be lost. This appropriately harmonizes the conflict of member of the National Assembly who are representatives of the people and but also is binding to the political party.

  ○  Fundamental effect of dissolution of political party and forfeiture of seats in the National Assembly 
    □ The Court’s order to dissolve a political party on the basis of a judicial founding of unconstitutionality under strict scrutiny is derived from the view of defensive democracy to protect the Constitution. In this exceptional situation where the Court decides to dissolve the unconstitutional party, it is therefore inevitable that the status of the members of the National Assembly as representatives of the people should also be sacrificed. 
    □  If assemblymen who are the members of the unconstitutional political party to be dissolved keep their seats in the National Assembly, it would result in an actual continuation of the unconstitutional party by practically allowing activities representing and realizing unconstitutional political ideologies in the process of forming political opinions.  In this regard, allowing the assemblymen affiliated with the dissolved political party to retain their seats in the National Assembly runs afoul of the function of the dissolution of political party system, which is to protect the Constitution or to defend democracy. This will lead to a failure to secure effective execution of the Court’s decision to dissolve the party.        
    □ Therefore, the Court finds that forfeiture of seats of the National Assembly members affiliated to the political party dissolved by the Court’s decision is the fundamental effect derived from the essence of the system on  dissolution of unconstitutional political parties.       
 
◈ Summary of dissenting opinion by Justice Kim, YiSu
※  Justice Kim Yisu shares the same opinion with the majority regarding  justiciability of the request, meanings of the dissolution of political party system and requirements for dissolving a political party.
 
  ○  Calling for a strict construction and application of the requirements for dissolution of political party 
    □ In interpreting the requirements of the dissolution of a political party, the text should be restrictively and limitedly construed. In selecting data or grounds on which the objectives or activities of the party are to be judged, watertight scrutiny on its relation with the party is required. 
    □ As the data or grounds regarding the objectives or activities of political party are mostly related to expressive behavior, their meanings should be construed on the basis of interpretation methodology as objective and generally acceptable as possible. Also, there should be no logical error or leap in interpreting and applying the requirements of the dissolution of a political party. Although the fact that the respondent conceals ‘hidden objectives’ should be supported by strict and concrete evidence, the petitioner's argument preconditions it as a matter of course. 
    □ The respondent is a political party that has more than thirty thousand active members paying party membership fees. As such, the political stance indicated only by a very small portion of the party members should not be considered as the entire position of the respondent in the process of proving the political direction of the majority of the party. The premise that the ideals in violation of the basic democratic order possessed by only a small part of the members will be naturally shared by all other members of the party is an error of hasty generalization, erroneously applying to the whole what is only related to a part.         
    □ I doubt that the majority opinion has strictly interpreted and applied the requirements of dissolution of a political party in deciding that the objectives of the respondent mainly consisting of so-called “Jaju ”(or 'self-reliance') faction are to first realize progressive democracy with the use of violence and ultimately to realize North Korean-style socialism in this country. 
           
  ○  Objectives of the respondent- not in violation of the democratic basic order 
    □ On reviewing the platform of the respondent or other documents that actualize it, the respondent’s declaration that “the party aims to a set up an independent, self reliant democratic government with the initiative of the working people, and to realize a progressive democratic society in which the people become the real leaders of society as a whole including politics, economics and culture” seems to show the party’s will to realize actual democracy for the interests of working people, proletariat class and general public by overcoming contradictions in our society.
    □ The specific contents of progressive democracy proclaimed in the platform of the respondent are a selective accumulation of theories and policies the so-called progressive political groups have asserted and formulated for decades. It does not contain any ideas which contrast the basic democratic order. Moreover there is not sufficient evidence that the respondent adopted 'progressive democracy' as a prerequisite in pursuing North Korean style socialism.
    □ Meanwhile, although policies regarding North Korea of the “Jaju ”(or 'self-reliance') faction may be wide apart from mainstream society, and that they have pro-North Korean tendencies, there is no sufficient evidence to prove that they blindly support North Korea or pursue North Korean style socialism. During the process of the respondent succeeding the Democratic Labor Party, through splitting of the party, forming of a new party, and the second splitting of the party, respondent has reduced in number compared to the Democratic Labor Party. Supporters of the “Jaju ”(or 'self-reliance') faction has grown. However, it is difficult to see that only those among members of Democratic Labor Party who are pro North Korea remain in the respondent party.
     The Petitioner argues that remaining members of the Democratic Revolution Party seized the respondent. However, members of the respondent who are recognized as lower members or those related to the Democratic Revolution Party are only a handful who have been convicted or mentioned in the decision. There is no evidence supporting the allegation that former members of the Democratic Revolution Party led the decision making within the East Kyeongi Alliance, or that the East Kyeongi Alliance Gwangju Geonnam Alliance, Busan Ulsan Alliance shared or supported an ideology and that they operated in a unified and collective manner.
    □ Despite the fact that the respondent pursues a structural and radical change of society with the presumption that our problems of society are structural, the fact that the respondent advocates a change of established orders does not render its activities to be prohibited in a democratic society. The respondent’s political aims for a ‘society for the working group’ or ‘independent government free from foreign influence’ are based on traditional political philosophy that has been developed by various progressive parties in many countries. The ideas were not originally developed and advocated by the respondent. The respondent has presented negatives view on the existing political and economic order and suggested the seizure of power through the right of resistance, in addition to election, in exceptional situations where the constitutional order is substantially infringed. Nonetheless, there is no concrete evidence that the respondent aims for change through violence or unlawful means in violation of the democratic principles or aims to overthrow the basic democratic order.   
    □ As the respondent's party platform has socialist connotations and North Korea is, at least officially, a socialist state, it is natural for the respondent and North Korea to have similar political ideas.  It is simply a  one-dimensional interpretation to attribute such similarities to the  respondent following North Korea. In order to prevent discouragement of critical views against the government and political powers on the basis of vague suspicion of connection or sympathizing with North Korea, the mere similarity in political ideas should not be sufficient evidence of following North Korea.

  ○ Activities of the respondent- not in violation of the basic democratic order

    □ The statements of Lee Seokgi at meetings hosted by the East Kyeongi Alliance, a local subordinate organization of the respondent, on May 10, 2013 and May 12, 2013 contains the idea that the "Jaju"(translated as 'self reliance') faction of South Korea should form a union with the Jaju group of North Korea against the United States of America and attack national infrastructure, in case of war. This is clearly against the common ideas of the people, and when considering the possibility to repeat such meeting or to attempts, runs against the  basic democratic order. Nonetheless, the aforementioned activities of the respondent, is against the respondent's political programme that pursues nuclear free peace and independent peaceful unification. It is not sufficient to prove that the respondent advocates such activity or that the respondent's political programme is affected by the it. Therefore,  such activity cannot be attributed to the responsibility of the respondent. In other words, the aforementioned statement of Lee Seokgi and others are substantially different from the respondent's political programme; the attendees of the above meetings cannot be seen as dominating the entire respondent party; and there is no evidence the respondent has approved the recognize the above meetings or the aforementioned statement. consequently, the respondent party should not be held responsible for specific activities regarding the above meetings or the aforementioned statement of which a violation of the basic democratic order is questioned.

    □ It is recognized that several activities of members of the respondent, including the illegitimate primary in selecting proportional representatives, the violent incident of the central committee, manipulation of public poll regarding the unification of the opposition party, violate democracy within the party. They did not respect the democratic decision making principles  and break the positive laws. Nevertheless, it does not prove that the respondent engaged in such activities in a systematic, calculated, aggressive and continuous manner in order to pursue objectives against the basic democratic orders.

    □ With the exception of the above-mentioned activities, the respondent has engaged in normal political activities as other political parties. Also we have resolved sporadic election corruption or crimes of party-related person with criminal punishment against the individual and political responsibility of the party. Considering these facts, the above-mentioned activities are not sufficient to be seen as being based on the respondent's political programme or substantially influencing the respondent's political objectives, and therefore posing a specific danger to cause substantial threat to basic democratic order. 

    □ Moreover, it is not proved that the respondent actively and intentionally appointed persons previously convicted for violating the National Security Act in pursuit of objectives violating the basic democratic order.

    □ Therefore, the respondent's activities do not violate the basic democratic order.

  ○ Whether the Principle of Proportionality is satisfied- the need for dissolution not recognized

    □ The social benefits achieved by the dissolution of the respondent party would not be substantial in the ordinary sense. In contrast, the social disadvantages occurred by the dissolution of the respondent is significant enough to exercise negative influence on the proper function of the democratic principle. The mandatory dissolution of a political party is a substantial restriction on the freedom of political party and freedom of political association that are the most essential factors of a democratic system. The dissolution of the respondent would impair the diversity of ideas that should be encouraged and protected in our society. Especially, it may lead to a chilling effect on the political freedom of minorities. Further, the dissolution of the respondent may exercise a severe influence on the true integration and stability of our society.
    □ From the days of the Democratic Labor Party, in cannot be denied that the respondent has brought about change in our society by proposing various progressive policies. This may have been a good reason for many members of the respondent to join the respondent party. If the respondent is dissolved because of the unlawful activities of some members, including Lee Seokgi, it would distort the political ideas of the majority of the respondent advocating its progressive policy and activity (the respondent has more than 100 thousands members) and impose a labeling effect by declaring them to be members of an unconstitutional political party. The respondent would become an anti-government organization; the entire members of the respondent would become members of the anti-government organization; and the people advocating the respondent would become the supporter of the anti-government organization. Consider the case of  Germany: The dissolution of the communist party was requested by government and between the decision of dissolution and the reconstruction of the communist party, nearly 125,000 party related people were investigated, 6~7,000 people prosecuted and many experienced restrictions in social activity, including layoffs. The same may also happen in this society upon the dissolution decision.
    □ If there are forces among the respondent (those involved in the insurrection case including Lee Seokgi) who sympathize with the North's revolutionary theory against South Korea and try to subvert the basic democratic order of South Korea, they can be effectively excluded from the respondent's policy-making through the Criminal Act, National Security Act, etc. If some of them are National Assembly members and are using that status to make more aggressive attempts at hurting the national order, there is a way for the National Assembly to uncover the facts in its own initiative and expel them through autonomous procedures (Article 64 Section 3 of the Constitution). 
    □ Although the dissolution of political parties system has good grounds for its existence, it should be used as a final and supplementary means.  Whether to dissolve a political party should in principle be tabled in the political public sphere (such as elections). As seen in the results of the sixth local election on June 4, 2014 (respondent won 4.3 percent for proportional representation in metropolitan councils) and recent opinion polls, the respondent is already subject to effective criticism and refutation in the political public arena.
    □ Given all the circumstances above, dissolving the respondent does not meet the constitutional request for the observance of the proportionality principle as the grounds to justify the dissolution of a political party.
    □ Therefore, this case should be rejected. This is not to give immunity for the problems caused by the respondent and to defend them. It is to prevent the undermining of hard-earned democracy and the rule of law achieved after so many years. It is to declare our firm trust in the constitutional order of the Republic of Korea, and to safeguard the essence of the spirit of the Constitution.

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