유럽헌법학회

In principle, the government has the discretion to file an appeal against the Constitutional Court to protect the Constitution and the nation in a proactive manner by realizing the ideology of defensive democracy, as the purpose or activities of a political party infringe on the democratic basic order of the country. However, if there is a specific risk that could actually harm the democratic basic order of the unconstitutional party, it is reasonable to assume that such a government's discretion should be reduced to file a lawsuit against the Constitutional Court. However, the government should be recognized only under very strict conditions so that it will not be abused as a means of suppressing opposition parties when it file a lawsuit against such unconstitutional parties. In order to protect the democratic basic order recognized under such very strict requirements and enhance the constitutional nature and effectiveness of the unconstitutional party disbandment system to protect the Constitution and the nation, it is reasonable to regard all the relevant parliamentary posts determined by the Constitutional Court as being lost, regardless of whether they are proportional representatives or local constituencies. In the future, Korea should establish an explicit regulation on the loss of parliamentary posts belonging to the party if it is decided to be disbanded by the Constitutional Court for the sake of the constitutional nature and effectiveness of the system of disbanding as Germany did.