The Ilegality of Dis-election Campaign in view of the Public Official Election Act

Abstract

This article studies the concept of an election campaign and in particular examines the extent of freedom and limitations of an election campaign in light of the Election Act. On this basis, the issue of illegality of dis-election campaign, the protest of the civic group and civil disobedience, the grounds for pros and cons of the campaign, and the decisions of the courts are analysed. Holding a fair election will be a litmus test of measuring the degree of democratization in a representative democracy. A governmental body representative of people reflecting the will of its people can be constituted through a fair election. Though under the constitution the sovereign right is vested with people, holding an election is indispensible to elect representatives due to complex situations of modern society and difficulties in securing the opinion of a large number of citizens. The issue on whether the dis-election campaign by a third party like the civic group is illegal by being considered as a common category of election campaign has been reviewed. The decision of the Constitutional Court held that the dis-election campaign by the third party should be prohibited, considering that it is not in essence different from the election campaign of the candidate, both being basically similar in terms of means and effects. Concerning the argument that the prohibition of dis-election campaign by the civic group restricts the freedom of political expression excessively, the Court ruled that the Election Act, having provisions on the expression of political opinion of groups, minimizes the restriction. The judgment of courts caused the issue of civil disobedience. The campaign was intended to guarantee the freedom of expression through dis-election campaign by amending the Act in order to elect persons genuinely representing people. Considering, in particular, that the sound development of organizations of public interest like the civic group contributes to the advancement of political culture of a nation and furthermore the establishment of sound representative system, a time will come when it is necessary to make an amendment to the Act.