[13-2 KCCR 263, 2000Hun-Ma121, etc.,(consolidated),

August 30, 2001]

In this case, the Constitutional Court reviewed the constitution-ality of provisions of the Act on the Election of Public Officials andthe Prevention of Election Malpractices, and the Court upheld the pro-vision prohibiting a "rejection campaign" of civic groups, the provi- sion limiting an election campaign period, and the provision permit-ting an incumbent to hold a briefing session on his or her legislativeactivities to the electorate until the day before an election campaignbegins officially.

A. Background of the Case

(1) On January 24 and February 2, 2000, the Citizens' Alliance forthe 2000 General Elections1)announced a list containing 109 individu-als not fit to be nominated by the political parties for the generalNational Assembly election scheduled for April 13, 2000, and vowed tolaunch a campaign against them being elected (hereinafter called the"rejection campaign") if they were nominated by the parties. Ac- cording to provisions in the Act on the Election of Public Officialsand the Prevention of Election Malpractices (hereinafter called the "Act"), an election campaign is defined as "an act for winning anelection, or for making another candidate be or not be elected," andan election campaign is only allowed during the period from the timeof completion of candidacy registration to a day before the electionday. According to the Act, the rejection campaign of the civicgroups conducted prior to the official election campaign period fallsinto the category of illegal campaign activities and is prohibited. Civic groups argued that the rejection campaign was not like anelection campaign of a candidate trying to be elected, but rather, it was an act to serve the public interest by providing objective dataabout a candidate, thereby satisfying the citizens' right to know about candidates running for public election and helping them in their choiceof representatives. Complainant, Citizens' Alliance, filed a constitu- tional complaint alleging that the provisions prohibiting the rejectioncampaign violated the freedom of political expression and the rightto political participation.

(2) Mr. A was nominated by the ruling party as a candidate for

an electoral district in the general National Assembly election sched-uled for April 13, 2000. According to the provision of the Act per-mitting an incumbent to hold a briefing session on his or her legis- lative activities to the electorate before an election campaign beginsofficially, the National Assembly member from Mr. A's electoral dis-trict held briefing sessions and sent out written reports to publicizehis legislative activities, but Mr. A, a candidate who is not currentlya member of the National Assembly, was not even allowed to pub-licize the fact that he would run for the National Assembly electionbefore the election campaign began officially. Thus, Mr. A filed aconstitutional complaint, alleging that the instant statutory provision violated the right of equality and the right to hold public office, and is against the principle of equal opportunities.

B. Summary of the Decision

(1) The Constitutional Court upheld the provision prohibiting re- jection campaign and the provision limiting election campaign period, on a unanimous vote, as follows:

(A) Provision Prohibiting Rejection Campaign

A rejection campaign by a third party who does not have direct interest in the outcome of an election is different from a rejectioncampaign by candidates against their opponents, in that it is notlaunched for the purpose of winning an election but for the publicgood of preventing the election of an unfit candidate. However, when a rejection campaign goes beyond simple expression of opinion abouta particular candidate and takes a more intentional, systematic, and deliberate approach, methods or modes employed in a rejection cam- paign by a third party is not much different from those employed ina rejection campaign by candidates. A rejection campaign launchedby a third party, contributes whether significantly or not to the elec-tion of a competing candidate, and in some cases, because of itsalleged public cause, it may affect the outcome of an election moredrastically than a negative campaign against the candidate by oppo-nents. Considering these facts, it can be concluded that there is es-sentially no difference between a rejection campaign of a third partyand that of other candidates as both have the same methods andeffects. If a rejection campaign without the purpose of winning anelection is allowed without regulation intended for campaigns, somecandidates might take advantage of this and tacitly use a third partyto slander competing candidates. Moreover, such criterion is so vagueas to allow arbitrariness by the election supervising authorities, and this wold hinder the management of a fair election.

The present statutes allow civic groups to invite candidates forinterviews or debates, and provide other legitimate ways for these

groups to participate in election campaigns during the election cam-paign period. Civic groups can also express their support or disap-proval for party nomination of a particular candidate before the officialelection campaign period. In sum, the present election laws providethe civic groups with other means to provide objective data aboutcandidates to electors, thereby contributing to realization of people'sright to know and helping them choose their representatives hencemaking efforts to minimize the restriction of rights.

The instant provision categorizes a rejection campaign launchedby a third party with no objective to win an election as a form ofan election campaign and regulates such activities. However, theAct has supplementary provisions designed to limit the restriction ofthe freedom of political expression to a minimal extent, and there isa balance of interests between the restriction imposed on the privatefreedom of expression and the public interest of managing a fairelection.

(B) Provision Limiting Election Campaign Period

If there is no limit regarding the election campaign period, over-heated race between candidates will make it very difficult to effec-tively manage an election and prevent illegal activity. Prolongedcompetition between candidates will bring about increased electionexpense, thereby causing much socioeconomic loss for the society asa whole. Also, in such case, difference in financial means will causeinequality in election, because - young, but qualified, newcomers lacking resources will be deprived of opportunities to be elected.Considering the purpose and manners of restriction, common election activities in Korea, and practical necessity, restriction of the election period is reasonable and necessary, and does not excessively restrict the freedom of election campaign.

(2) The Constitutional Court upheld the provision permitting amember of the National Assembly to hold a briefing session on his orher legislative activities to the electorate before the official electioncampaign period, on a majority vote of five Justices, as follows:

(A) Majority Opinion

To report his or her parliamentary activities is a political dutyof a representative to the electorate, and is an essential part of thejob of a legislator in the National Assembly. Therefore, it should beallowed without any restriction as long as there is no other reasonnot to. Only that interpreting the instant provision, activities allowedbefore the official campaign period should be limited to reports onparliamentary activities as a representative of particular electorate,and all other activities amounting to election campaign activities shouldbe banned. Inequality of election campaign opportunities arising frominadequate regulation of pre-election campaign of an incumbent Na-tional Assembly member is inequalityde factocaused by adminis-trative action, and not

inequalityde juredirectly caused by theinstant provision.

Therefore, the instant provision does not treat candidates who arenot currently members of the National Assembly differently from can-didates who are current members of the Assembly without a reason-able basis. So it does not violate the candidates' right of equality and the right to hold public office, does not infringe on the freedomof expression of electors, and is not against the principle of equalopportunities in election campaigns.

(B) Dissenting Opinion

According to the instant provision, a candidate who is currentlya member of the National Assembly is allowed to conduct electioncampaign activities without time limit: while election campaign acti-vities before the official election campaign period are banned, theincumbent can make an excuse that it is a part of his job to report on his parliamentary activities to his electorate. As a result, a can-didate who is an incumbent National Assembly member, is given alonger election campaign period compared to those candidates who are not incumbent. Therefore, the instant provision discriminates againstcandidates who are not incumbents, without reasonable basis, anddeprives them of the equal opportunity in election campaigns. It thusviolates the principle of equality and is against the constitutionalprovision calling for equal opportunity in election campaigns.

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