수형자의 선거권 제한의 위헌성

초록

According to criminal law and election law of Korea, all convicted prisoners are automatically forbidden to vote while in prison or on parole. In 2004, the Constitutional Court of Korea held that this disenfranchisement provision is not unconstitutional. But in 2008 an another convicted prisoner in detention challenged the denial of his right to vote again. The Court's decision seems to be near at hand. This paper criticizes the current legal policy that absolutely prohibits prisoners from voting until the term of imprisonment is fully served. Such a general, blanket restriction on the right to vote of prisoners has no material effect on the deterrence of crimes. Conversely, enfranchisement can be very helpful to the rehabilitation policy, because voting in prison encourages prisoners to behave responsibly and appreciate the implications of citizenship. In respect to the compatibility with Constitution, it could be considered as a legitimate aim that the ban on voting right of prisoners contributes to keep the public confidence to the national elections. However, this paper argues that the absolute ban as a measure must be seen as disproportionate. Firstly, such a blanket restriction applies automatically to a wide range of offenders, from relatively minor offences to offences of the utmost gravity. Secondly, while there is severe doubt as to the efficacy to achieving such an aim through a bar on voting, the right to vote infringed by this policy must be a vitally important constitutional right in democratic society. Therefore the conclusion of this study is that the provision which allows a blanket ban on prisoners' right to vote must be declared as unconstitutional.

키워드