휴대전화 문자메시지를 이용한 선거운동금지 규정에 대한 헌법적 평가 - 헌법재판소 2009. 5. 28, 2007헌바24 결정의 평석을 중심으로 -

Abstract

The Constitutional Court decided in its 2007 Hun-ba 24 decision (May 28, 2009) that Clause 1, Article 93 of the Public Official Election Law did not violate the void for vagueness doctrine and the principle of balancing test. First of all, the Constitutional Court is correct in holding that the part ‘or the like’ in the same Article is a general provision and that the Article falls under the non-exhaustive (the methods in the Article are not exhaustive) legislative format and does not violate the void for vagueness doctrine. Also, the Constitutional Court is correct in that the Article, categorically prohibiting the transmission of all mobile text messages to voters for certain period of time in order to protect a peaceful and fair election, has a legitimate legislative purpose and since the means provided for in the Article at least contributes to achieving such purpose, they conform to the principle of suitability of means. But sending mobile text messages to voters as a means of election campaigning, since it is much less expensive and is easier and more effective in transmitting information on the election to the voters than any other campaign methods provided for in the Public Official Election Law, has to be protected in the Public Official Election Law in principle. And thus Clause 1, Article 93 of the Public Official Election Law, in denying such protection, does not conform to the framework of protecting basic constitutional rights as a principle and restricting them as an exception. And the Public Official Election Law does not minimize damage to a peaceful and fair election by restricting the total number of mobile text messages sent to voters or requiring the campaigners to obtain consent of the voters to receive the messages but categorically prohibit transmission of all mobile text messages on the election for certain period of time, which is an excessive restriction of the freedom of election campaigning and thus a violation of the principle of minimum infringement. For such reasons, the benefit of a peaceful and fair election obtained by the Article is exceeded by the benefit of the candidates' freedom of election campaigning damaged by the Article, so the Article violates principle of the balance of benefit and protection of the law. Therefore, the Constitutional Court's decision, which decided differently from this author regarding the above, is not correct.