(a) Legal provisions applicable to the claim;

Article 106 (1) and Article 255 (1) 17 of the Public Official Election and Prevention of Unlawful Election Act (hereinafter referred to as the "Public Official Election Act") are Article 106 (1) and Article 255 (1) 17 of the same Act.

Article 106 (Restriction on House-to-House Visits) (1) No person shall visit door to door for election campaign or for the purpose of soliciting admission and admission during the election period.

(2) Notwithstanding the provisions of paragraph (1), a person who is eligible for an election campaign may appeal for support for a political party or candidate at a place where ceremony of coming-of-age, marriage, funeral and ancestor worship is held, and at a road, market, store, bank, waiting room, or other open place where many

(3) No person shall make door-to-house visits for the notification of a campaign speech meeting or an interview at an open place during the election campaign period.

Article 255 (Unlawful Election Campaign) (1) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than three years or by a fine not exceeding 6 million won (hereinafter referred to as "Partial omission"):

17. A person who visits or makes another person visit door to door, in contravention of the provisions of Article 106 (1) or (3);

B. Summary of the reasons for the request for unconstitutionality

The regulation of election campaigns for the fairness of election should be limited to the minimum limit that guarantees the fairness and equal opportunity of election, and even though there has already been a penal provision on purchase under the Public Election Act or against the other party, the provision of the law subject to the claim is a provision prohibiting and punishing the act of door-to-door visit on the ground that there is a probable probability of such unlawful election acts, and in terms of comparative law, it violates the principle of freedom of expression and free election as provided in Article 21 of the Constitution by limiting excessive election campaigns except in Japan, and at the same time, it violates the principle of excessive prohibition of restriction of fundamental rights.

2. Determination:

A. The premise of the judgment

The public prosecutor applied the rate of the petitioner as the legal provision of the claim and prosecuted the petitioner as the facts charged in the attached Form, and accordingly, the public trial is in progress in this court 2002 Gohap38. Thus, depending on whether the legal provision of the claim becomes null and void or not, the conclusion of the guilty or not guilty of the above case is different. Thus, the issue of whether the legal provision of the claim becomes unconstitutional or not is the premise of the judgment.

B. Determination on the constitutionality of a statute

(1) Whether the principle of freedom of expression and the principle of free election is violated

(A) While guaranteeing the citizen’s right to vote, right to hold public office (Articles 24 and 25), and freedom of expression (Article 21), the Constitution also provides that if necessary for national security, maintenance of order, or public welfare, the freedom and rights of the people may be restricted by law to the extent that they do not infringe on their essential contents (Article 37(2)). It is evident that the freedom of election campaigns may be restricted by law if necessary for the public interest, such as ensuring the fairness of election. Furthermore, as Article 116 declares that the public election system is the basic method of election campaigns, there is a special provision that “the election campaign shall be within the extent prescribed by law, but equal opportunity shall be guaranteed” under the management of the election commission of various levels, and also that a member of the local council grants discretion to the National Assembly in relation to the methods and regulations of election campaigns (Article 118(2) of the Constitution).

The fact that the Public Election Act regulates various regulations in terms of the subject, method, period and cost of election campaign is in accordance with the above provisions of the Constitution.

On the other hand, various legislation on election should be formed in harmony with the two ideas of "the freedom and fairness of election" in a proper way. However, there is no commonly reasonable absolute criteria for every country and every society with respect to the proper harmonization of allowing to some extent and limiting to some extent. In other words, the standards should vary depending on the circumstances such as the country's history and political culture, election climate and the level of election culture, and the degree of maturity of democratic citizen consciousness.

Therefore, many provisions of the public election law that limits the methods of election campaigns are to secure the fairness and equal opportunity of elections, and in principle, the two ideas of "free and fair" in elections should be respected in consideration of the unique circumstances of our country.

(B) The provision prohibiting door-to-door visits as an election campaign, which is the subject of the instant provision, was first introduced by the National Assembly Election Act (No. 204) on June 2, 1951 to the current public election law. The purpose of its legislation is to ensure the settlement of new culture of election and the realization of democratic politics by ensuring the free formation of political opinions and the fairness of election of the people in order to realize a clean election.

However, the above door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door, a candidate or a political party he or she supports by visiting the house of the local electorate and explaining and explaining the political views, policies, etc. of the candidate or the political party he or she supports, and criticizes the candidate or political party he or she supports, political views and policies different from policies, and the contents of the door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door, and it is problematic whether it conflicts with the freedom of expression (Article 21 of the Constitution) and the principle of free election as it limits the freedom of expression and election campaign by it, which eventually leads to the extent that the Constitution permits such a restriction.

(c)The right and freedom under the Constitution, not absolute and non-restrictions, may be restricted for certain high-level purposes, such as public welfare, pursuant to Article 37 of the Constitution, and the election campaign is carried out at the same time by many candidates and political parties within a certain period, as provided in Article 1 of the Act on the Election of Public Officials, it is interpreted that "in order to ensure that the election is carried out fairly in accordance with the free will of the people and democratic procedures, and that it contributes to the development of democratic politics by preventing any malpractice related to the election," and that reasonable restrictions are granted to election campaigns by means and methods which are likely to be detrimental to the freedom of political formation of electors to secure the public name and appropriateness of the election, to the extent necessary.

First of all, as seen earlier anticipated as a door-to-door visit, certain candidates and political parties’ expressive acts are allowed to be carried out by various means and methods, such as individual interviews at public places, requests by personal computers and telephones under certain restrictions, methods by means of radio and television political views, and holding a campaign speech meeting under the current public election law. Thus, the prohibition of door-to-door visits is not merely a prohibition of the expression of candidates, etc. itself, but is merely a restriction on one of the means and methods of expressive acts for election campaign.

Next, as seen earlier, door-to-door visits as an election campaign are offered as data to voters, political views of political parties, policies and personality of candidates, etc. through direct dialogues, and are given opportunities for debate, criticism and understanding with each other. However, if door-to-door visits directly face with the electors at a place not open to the general public are allowed, then there is a high probability that the act detrimental to the freedom of election and the fairness of election may be conducted by using the opportunity, such as the purchase, entertainment, intimidation, understanding inducement and slander of other candidates, and criticism, etc. In addition, in the other side of the candidate, it is highly likely that the act detrimental to the freedom of election and the impartiality of election is likely to be done by each candidate, by causing excessive competition among the candidates, and the experience in election campaigns is likely to undermine the substantial fairness of election campaigns by causing excessive participation among the candidates, and thus, it is necessary to prevent any substantial danger of election campaigns between the candidates and to realize the fair election campaign so far.

In full view of the various points, it is clear that Article 106(1) of the Public Election Act, which prohibits door-to-door visits, as a regulation on election campaign methods, is to ensure the fairness of election by preventing election campaigns that are likely to cause many harm, and at the same time to prevent the disbursement of enormous election expenses caused by excessive competition. Thus, even if there is any restriction on the freedom of expression and the freedom of election, the legislative purpose is not only the party, but also the necessary and reasonable regulation for securing the freedom of election and the fairness of election, and it cannot be deemed that Article 21 of the Constitution and Article 255(1)17 of the Act, which stipulate the freedom of expression, are contrary to the principle of free election, and therefore, Article 255(1)17 of the Act, which punish the act of violation for the same reason, cannot be deemed as a provision contrary to the Constitution

(2) Whether the principle of excessive prohibition is violated

(A) The issue of allowable scope and punishment for election campaign in a country is to be decided by the legislative body in a policy by comprehensively considering the current situation at the time of legislation and the level of election culture and the awareness of the people to the extent that the principle of excessive prohibition under Article 37(2) of the Constitution is observed. In determining whether a specific law violates the above principle, it is insufficient to compare the simple ordinary size of legislation or whether the punishment under other similar Acts is imposed. It is not enough to make a reasonable determination by comprehensively taking into account the overall political, social development stage and the maturity of the people's awareness, existing electoral climate or other economic and cultural conditions.

Although many elections have been held in the middle of half the century since the country, there is still no clean and clear competition. In light of such reality, it is inevitable to punish the act of door-to-door visit, such as the legal provision of this case, regardless of the occurrence of illegal use, in order to prevent such harm and realize a fair election. In addition, it is necessary to prohibit door-to-door visit as well as the degree of restriction on the freedom of expression and election campaign, the contents of which include the political media such as the request for voting, and the degree of loss by such restriction, as seen earlier, the degree of maintenance and promotion of the fairness of election by the prohibition of door-to-door visit, and the profits that the above harm, etc. were generated by removal, and in view of the maintenance and promotion of fair elections, such prohibition is much more necessary than the profits that have been lost due to the prohibition.

Furthermore, Article 106(1) of the above Act does not intend to regulate the contents of expression itself, but does not only restrict one of the means and methods of expression, which is the request for voting by visit, so the decision of the legislative body that prohibits door-to-door visits is still reasonable.

(B) Examining the above perspective, the purpose of the prohibition of door-to-door visit as seen earlier, and the necessity and effectiveness of the prohibition as a means to achieve the pertinent purpose, and the balance between the benefits obtained from such prohibition and the profits lost by such prohibition, etc., there is a provision punishing a person who violates the prohibition of door-to-door visit, and thus, it is difficult to deem that legislators violated the fundamental rights in violation of the principle of excessive prohibition, such as the minimum damage or the balance of the legal interests in the restriction of fundamental rights under the Constitution.

C. Sub-committee

Therefore, Article 106(1) of the Official Election Act and Article 255(1)17 of the Act, which prohibit door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door door

3. Conclusion

Therefore, the applicant's motion for proposal of the unconstitutionality of this case is dismissed, and it is so decided as per Disposition.

Judges Lee Gyeong-ck (Presiding Judge)