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

• Published in: Journal of Korean law Vol. 15; no. 2; pp. 297 - 323
• Main Author: Sungjin Kim
• Format: Journal Article
• Language: Korean
• Published: 서울대학교 아시아태평양법연구소 30-06-2016
• Subjects: Democracy; Dissolution of Political Party; European Court of Human Rights; Freedom of Association; Fundamental Democratic Order; Pluralism; Political Party; Pressing Social Need; Principle of Proportionality
• ISSN: 1598-1681

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.