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Dissolution of Political Party: Criteria adopted by the Korean Constitutional Court and Lessons from the European Court of Human Rights

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Authors
Kim, Sungjin
Issue Date
2016-06
Publisher
School of Law, Seoul National University
Citation
Journal of Korean Law, Vol.15 No.2, pp. 297-323
Keywords
Dissolution of Political PartyFundamental Democratic OrderPrinciple of ProportionalityEuropean Court of Human RightsDemocracyPluralismFreedom of AssociationPressing Social NeedPolitical Party
Abstract
The Korean Constitutional Court adopted a two-prong test in its first case on dissolution of political party in determining whether to dissolve the political party. According to Article 8 Section 4 of the Korean Constitution, a political party may be dissolved if the purposes or activities of the political party are contrary to the fundamental democratic order. The Korean Constitutional Court not only used Article 8(4) of the Constitution as a standard of review for dissolution of political party but also adopted the principle of proportionality as another standard of review to be met even though the Constitution does not explicitly say so. The European Court of Human Rights has also used essentially a two-step test where the dissolution of a political party is justified if there is a pressing social need for the dissolution and the dissolution is proportionate to the legitimate aims pursued. In principle, the criteria established by the Korean Constitutional Court is very similar to the ones developed by the European Court of Human Rights even though the outcome of the application seems to be somewhat different.
ISSN
1598-1681
Language
English
URI
http://hdl.handle.net/10371/97159
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) Journal of Korean LawJournal of Korean Law Volume 15 Number 1/2 (2015/2016)
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