선거의 평온 및 공정성 관련 공직선거법 규정에 대한 검토

Abstract

The concept of electoral fairness and tranquility must be understood on the premise of competitive elections implemented in the electoral democracy. Political competition is inevitable in competitive elections. Political competition must be guaranteed freely. However, as political competition is combined with political equality, equal opportunities of competition and the fairness of election should be guaranteed. On the other hand, because it is necessary to set the level of social costs due to overheating of political competition, the tranquility of the election is also required. In that sense, fairness and tranquility of the election regulate the election process, especially electoral campaigns. In order for competitive elections to be conducted correctly in a democratic political system, there must be institutional devices to prevent and reduce political monopoly. From the perspective of political competition and political control, electoral fairness that seeks to ensure equal freedom of campaigning needs to be fully implemented. To that end, the legislation of election law, strict enforcement of election law, and ultimately the monitoring of neutral justice are important as rules for fair games that are faithful to the doctrines of election campaigns. The main campaigns that have been subject to regulation in relation to tranquility and fairness are speeches and dialogues of proportional representative candidates in public places, establishment of facilities for campains, distribution and posting of documents and drawings, and door-to-door visits. The Constitutional Court has ruled all these restrictions contitutional. Considering the legislative purpose of each clause and our political experience and reality, the writer thinks they are reasonable decisions. However, more positive judgments are required for the future political development. First of all, it is necessary to make it possible to install advertising materials in a low-cost manner in order to ensure freedom of political expression of general voters as well as candidates. For example, anyone who can make an election campaign is allowed to attach an campaign display in his home or on his car during the campaign period. Second, in judging the unconstitutionality of Article 93, paragraph 1, the writer thinks it is necessary to distinguish candidates from the general voters. In the case of candidates, the restriction under Article 93 (1) is an institutional device for ensuring freedom and fairness of elections. However, in the case of the general voters, their freedom of political expression must be respected in order to respond to the political control of the public over political forces. So, the writer thinks that the restrictions on the period and mode of action under the current regulations are excessive. Third, the restriction of door-to-door visits is useful for the time being under the current law. However, it is necessary to frequently hold small debates organized by the Election Commission in order to effectively transmit election information in the rural areas. From the standpoint of political neutrality, the Constitutional Court should examine whether election-related laws are unconstitutional as a referee in the political process of democracy that relieves basic rights that have been violated in the election process. The main role of the Court, as an adjudication in the democratic political process, is to ensure political competition. Due to the limitations of political consumers, imperfections in the election process, and the non-competitive behavior of political forces, the Court must play the role of a political competition guard in a political process that tends to become a natural political monopoly.