공직선거법상 선거여론조사 규제에 관한 헌법적 검토

Abstract

The electoral opinion polling on candidates and election issues is key political information and its influence is increasing in today's digital media society. However, the electoral opinion polling can be limited because information errors caused by manipulation and distortion of results can interfere with the rational choice of voters, which can undermine the fairness of elections, which are important in the completion of democracy. Currently, the Public Official Election Law establishes the 'Electoral Public Opinion Investigation Committee' and many regulatory legislation, such as the 'registration system' and the 'prohibition period for publishing the electoral opinion polls'. However, the inaccuracy of opinion polling is inherent and the voters' responses to polling are not proved scientifically, so regulation of the electoral opinion polling, based solely on abstract risk might infringe the right to know and the freedom of political expression. Therefore, the regulation of The electoral opinion election polling based on the fairness of the election should be narrowly tailored and judicial review about regulatory legislation is strictly examined. The registration system about the election polling institute for the purpose of publishing or reporting the result of electoral opinion polling is necessary in order to secure the professionalism of the survey research institute. However, the high registration standard could substantially exclude entry of the Start Up and it could not be an appropriate means for the purpose. In addition, the preliminary notification system before conducting the polling surveys related the election, has some exemptions, so it could be the discriminatory regulation. For example, the small sized presses unlike the large sized presses has to do preliminary notification based on the risk of election polls by the local media and that is highly likely to violate their freedom of political expression and equal protection. Finally, the Public Election Law regulates the restriction period of publishing electoral opinion polling results to 6 days before the election day. The Constitutional Court has made three decisions for constitutionality, but the main reasons for these decisions are lacks of special regulatory institutions and inspection standards. There are lots of regulatory legislation to ensure the fairness of the electoral opinion polls. Also electoral polling information is important political information, and it is necessary to guarantee the right of the people to know, so it should be considered to abolish or lessen the restriction period of publishing opinion poll.