법률유보원칙과 중앙선거관리위원회규칙 - 2022헌마232 결정을 소재로 한 분석 - = The principle of Legal Reservation and Regulations of the National Election Commission

다국어 초록 (Multilingual Abstract)

The Public Official Election Act stipulates that early voting officials must seal the ballot by hand. The rule provisions of this case stipulate that the seal can be replaced with a printing seal. The issue is whether it violates the claimant’s right to vote.
The Constitutional Court did not judge this point, even though it believed that the provisions of the rules in this case could violate the Public Official Election Act. It was judged that there was no violation of the principle of legal reservation because there was a legal basis. There is no argument that if the principle of legal reservation was observed, of course, the principle of legal superiority was observed. In the end, there was no judgment on whether or not the principle of legal superiority was violated.
I do not believe that the regulation in this case have a legal basis.
However, this is not considered to be the reason for the unconstitutionality of the rule provisions in this case. The National Election Commission has the power to establish regulations on election affairs without the delegation of laws. Therefore, the principle of legal reservation does not apply in this area.
The Constitution stipulates that the regulations on election affairs established by the National Election Commission should not violate the laws. Article 158 (3) of the Public Official Election Act clearly stipulates that early voting officials seal the ballot by hand. The regulation of this case establishes that the seal can be replaced by the printing seal. The regulation of this case violate the law.
In this paper, it was argued that the regulation in this case violate the principle of legal superiority, but it was not reviewed whether this violates the claimants’ right to vote. This is linked to the issue of legal interests to protect the right to vote.