위헌심판의 심사기준 ― 선거운동과 표현의 자유를 중심으로 ―

Abstract

The Constitutional Court would decide 'unconstitutional' the statutes restricting the freedom of election campaign by strict standard of judicial review. It means that the Congress should change the basic policy for election fairness from restricting each campaign method to limiting the quantity of campaign expenses. The Constitutional Court has said that strict standard must be applied to review of the election campaign law in principle. But it also accepted the rationality of the statues and told that the basic policy of Congress must be respected in a lot of cases. From the point of view of freedom of expression, the standard of judicial review on Election Campaign law must be the strict scrutiny. But the Constitution provides the fairness of election campaign as one of the essential elements for the institution. The Congress should be in charge of considering and making best efforts to harmonize both values. So, the discretion of Congress for making election campaign rules in detail must be respected. The conflicting decisions of the Court would be resulted from the failure of balancing two constitutional values of freedom of expression and fairness of election campaign.