Case on Deposit Money, etc. in Elections of Proportional Representative National Assembly Members

[2015Hun-Ma509, 2015Hun-Ma1160 (consolidated), December 29, 2016]

In this case, the Constitutional Court held that the provision concerning ‘elections of proportional representative National Assembly members’ in Article 56 Section 1 Item 2 of the Public Official Election Act, which prescribes that political parties who register candidates for proportional representative National Assembly members shall pay a deposit of 15 million won per candidate, infringes upon the right to hold public office and therefore does not comply with the Constitution; that the provision concerning ‘candidates for proportional representative National Assembly members’ in Article 79 Section 1 of the same Act, which prohibits candidates for proportional representative National Assembly members from campaigning by making campaign speeches or giving interviews in open places, does not infringe upon the complainants’ freedom to engage in election campaigns; that Sections 1 and 3 of Article 106 of the same Act, which prohibit campaigning by making house-to-house visits, do not infringe upon the complainants’ freedom to engage in election campaigns; and that the provision concerning ‘elections for local constituency members of the National Assembly’ in Article 56 Section 1 Item 2 of the same Act, which prescribes that each candidate in an election of local constituency members of the National Assembly must pay a deposit of 15 million won, the provision concerning ‘where he or she has obtained 15/100 or more of the gross number of valid votes’ in Sub-Item (a), regarding the ‘election of the local constituency members of the National Assembly,’ and Sub-Item (b), of Article 57 Section 1 Item 1 of the same Act, which prescribes that deposit money be returned depending on the rate of votes obtained, and the provision concerning ‘documents’ and ‘printed matter’ in the main text of Article 93 Section 1 of the same Act, which prohibits campaigning using documents or printed matter in ways that

are not in accordance with the provisions of the Public Official Election Act, do not infringe upon the fundamental rights of the complainants.

Background of the Case

(1) 2015Hun-Ma509

The ○○ Party, the complainant at the time the request for adjudication was made, was a political party planning for its party members to run for the election for the 20th National Assembly held on April 13, 2016, while the rest of the complainants were planning to register as candidates for the 20th election of the local constituency members of the National Assembly. On May 15, 2015, the complainants filed a constitutional complaint against Article 56 Section 1 Item 2 of the Public Official Election Act.

(2) 2015Hun-Ma1160

The complainants, at the time the request for adjudication was made, were persons recommended as candidates for the ○○ Party in the election for proportional representative members of the 20th National Assembly, and filed a constitutional complaint on December 14, 2015, against Article 56 Section 1 Item 2 of the Public Official Election Act.

Subject Matter of Review

The subject matter of this case is whether: ① Article 56 Section 1 Item 2 (hereinafter referred to as the “Deposit Money Provision,” of which the provision, ‘election of the local constituency members of the National Assembly’ is referred to as the “Local Constituency Deposit Money Provision” and the provision, ‘election of the proportional representative National Assembly members’ is referred to as the “Proportional Representative Deposit Money Provision”) of the Public

Official Election Act (amended by Act No. 9974 on January 25, 2010); ② the provision concerning ‘where he or she has obtained 15/100 or more of the gross number of valid votes’ in Sub-Item (a), regarding the ‘election of the local constituency members of the National Assembly,’ and Sub-Item (b) of Article 57 Section 1 Item 1 of the same Act (hereinafter referred to as the “Return of Local Constituency Deposit Money Provision”); ③ the provision concerning ‘candidates for the proportional representative National Assembly members’ in Article 79 Section 1 of the same Act (hereinafter referred to as “Provision Prohibiting Speech, Etc.”); ④ the provision concerning ‘documents’ and ‘printed matter’ in the main text of Article 93 Section 1 of the same Act (hereinafter referred to as the “Provision Prohibiting Documents and Printed Matter”); and ⑤ Sections 1 and 3 of Article 106 (hereinafter collectively referred to as the “Provisions on Prohibition of House-to-House Visits”) of the Public Official Election Act (amended by Act No. 7681 on August 4, 2005) infringe upon the fundamental rights of the complainants and thus violate the Constitution. The Instant Provisions read as follows.

Provisions at Issue

Public Official Election Act (amended by Act No. 9974 on January 25, 2010)

Article 56 (Deposit Money)

(1) A person who applies for a candidate registration shall pay the following deposit money per candidate to the competent constituency election commission at the time of the application for registration, pursuant to Regulations of the National Election Commission: (Remainder omitted.)

2. 15 million won, in cases of an election of a National Assembly member.

Article 57 (Return, etc. of Deposit Money)

(1) The competent constituency election commission shall return amounts classified under the following items to the depositor within 30 days after the day of the election. In such cases, deposit money, which is not returned, shall revert to the State or local governments:

1. The presidential election,the election of the National Assembly members of local constituency, the election of the local council members of local constituency and the election of the heads of local governments:

(a) Whole amount of the deposit money in cases where the candidate has been elected or has deceased, andwhere he or she has obtained 15/100 or more of the gross number of valid votes;

(b) Amount equivalent to 50/100 of the deposit money in cases where the candidate has obtained not less than 10/100 but less than 15/100 of the gross number of valid votes.

Article 79 (Campaign Speeches or Interviews in Open Places)

(1)The candidate (excluding any candidate for the proportional representative National Assembly memberand the proportional representative local council member, hereafter in this Article the same shall apply) may make a campaign speech or interview at an open place for the purpose of providing information on the platform and policy of the political party to which he or she belongs, his or her political views or other necessary matters during the election campaign period.

Article 93 (Prohibition of Unlawful Distribution or Posting, etc. of Documents and Pictures)

(1) No one shall distribute, post, scatter, play, or run an advertisement, letter of greeting, poster, photograph,document, drawing,printed matter, recording tape, video tape, or the like which contains the contents supporting, recommending or opposing a political party (including the preparatory committee for formation of a political party, and the platform

and policy of a political party; hereafter the same shall apply in this Article) or candidate (including a person who intends to be a candidate; hereafter the same shall apply in this Article) or showing the name of the political party or candidate with the intention of influencing the election, not in accordance with the provisions of this Act, from 180 days before the election day (when the reason for holding the election becomes final, in case of a special election) to the election day:Provided, That the same shall not apply to any of the following acts:

1. Where any candidate or any person falling under any of the items of Article 60-3 Section 2 (including the chief of an election campaign liaison office, in cases falling under Item 2, and, in such cases, “preliminary candidates” shall be deemed “candidates”) personally hands out the name cards of a candidate under Article 60-3 Section 1 Item 2 during the election campaign period;

2. Ordinary political party activities under Article 37 Section 2 of the Political Parties Act during a period, other than the election period.

Public Official Election Act (amended by Act No. 7681 on August 4, 2005)

Article 106 (Restriction on House-to-House Visits)

(1) No one shall make a house-to-house call to persuade other persons to join a political party, for an election campaign or during the election period.

(3) No one shall make a house-to-house call for the notification of any campaign speech or interview at an open place during the election period.

Summary of the Decision

1. Local Constituency Deposit Money Provision and Return of Local Constituency Deposit Money Provision

The abovementioned provisions aim to guarantee the credibility of the elections and the sincerity of the candidates, and also to secure, in advance, any fines, etc. imposed for illegal conduct in the course of the elections. Thus, they serve a legitimate purpose and provide an appropriate means. Given the role of elections and purpose of the deposit money system in a representative democracy; the need for such a measure considering the political culture and nature of elections in Korea; the changes in the number of candidates per constituency; and the average monthly income of workers, it is hard to propose a less onerous measure than the deposit money system, the amount is not unreasonably high, and the requirements for return are inevitable means, and satisfy minimum restriction. Therefore, the above provisions do not infringe upon the right to hold public office.

2. Proportional Representative Deposit Money Provision

The purpose of the Proportional Representative Deposit Money Provision is to prevent the escalation of election-related management duties and costs, incurred by imprudent recommendations by political parties for candidates for proportional representative National Assembly members, and to secure in advance the fines imposed for illegal conduct committed in the election procedures as well as administrative vicarious execution costs. This serves a legislative purpose, and the establishment of a deposit money requirement provides an appropriate means for achieving that purpose.

The following is an examination as to whether the deposit prescribed by the Proportional Representative Deposit Money Provision is the least restrictive means necessary for achieving its legislative purpose. To begin

with, the election of proportional representative National Assembly members is fundamentally different from the election of local constituency members of the National Assembly, in that the former is closer to an election of a political party while the latter is an election of individual persons. It is much less likely for an election of proportional representative National Assembly members, compared to that of local constituency members, to be corrupt or overheated through election campaigns permitted under the Public Official Election Act. Nonetheless, the Proportional Representative Deposit Money Provision sets a high deposit equal to the elections for the local constituency members of the National Assembly. Next, with regard to the legislative purpose of securing, in advance, fines and administrative vicarious execution costs, the total amount of such fines and costs actually imposed on political parties in the elections of proportional representative members of the 17th to the 19th National Assembly falls far short of 15 million won, the deposit allocated for each candidate. Furthermore, the proportional representative system was introduced to make up for the flaws of the majority representation system, which is without question favorable to large political parties and may produce dead votes for failing to properly represent the diverse voices of the people. Yet, the large deposit amount, combined with the requirement for return, will not serve as any restriction to political parties that are highly likely to receive their entire deposit back, while for new or minor parties, which are most unlikely to receive their deposit money back, the large deposit serves as a burden in their participation in the elections and, furthermore, in the recommendation of party candidates. Therefore, the deposit of 15 million won per candidate cannot be deemed the minimum amount necessary for achieving the aforementioned legislative purpose, and consequently the Proportional Representative Deposit Money Provision violates the principle of minimum restriction.

The disadvantage of restrictions on the right to hold public office and freedom of political party activities, imposed by the Proportional Representative Deposit Money Provision on candidates for proportional

representative National Assembly members or political parties who recommend them, significantly outweighs the public interest of keeping, through this provision, the recommendations for political party candidates sincere, and of securing the fines for election-related illegal conduct and administrative vicarious execution costs. Therefore, the Proportional Representative Deposit Money Provision violates the balance of interests.

Thus, the Proportional Representative Deposit Money Provision violatesthe rule against excessive restriction, and infringes upon the complainants’right to hold public office.

3. Provision Prohibiting Speech, Etc.

A. Opinion of Four Justices that the Provision is Constitutional

The Constitutional Court, in the Constitutional Court Decision 2004Hun-Ma27 on July 27, 2006, and the Decision 2012Hun-Ma311 on October 24, 2013, has already ruled that prohibiting proportional representative National Assembly member candidates from making campaign speeches or giving interviews in open places does not violate the Constitution, and there has been no change of circumstances that requires the aforementioned precedents to be overruled, and thus the positions of the Court declared in those precedents remain valid in this case. Therefore, the Provision Prohibiting Speech, Etc. does not infringe upon the freedom to engage in election campaigns by violating the rule against excessive restriction.

B. Opinion of Five Justices that the Provision is Unconstitutional

In elections of proportional representative National Assembly members, political parties can prepare campaign bulletins, make broadcast speeches using broadcast facilities, and run newspaper or internet advertisements. However, since the allocated newspaper space; number of participants; frequency; and time range are strictly limited by law, and means such as advertisements demand high costs, new or minor parties that have relatively low approval rates or are in poor financial conditions find it

difficult to utilize such measures. This calls for a tool through which political parties can reach out to voters and conduct election campaigns regardless of their size or name recognition.

Concerns over election campaigns becoming overheated when candidates for proportional representative National Assembly members are permitted to give campaign speeches or interviews in open places can be resolved partially by restricting the methods and conditions for giving speeches or interviews, for instance by limiting registration for giving speeches to one candidate per local constituency. Despite such options, the Provision Prohibiting Speech, Etc. completely deprives candidates for proportional representative National Assembly members of the chance to make campaign speeches or give interviews, thus violating the principle of minimum restriction.

Considering the importance of elections in a representative democracy, the extent of the freedom to engage in election campaigns and political activities restricted by the Provision Prohibiting Speech, Etc. largely outweighs the public interest of saving social costs or guaranteeing fair elections sought by such restriction, and thus the Provision on Prohibiting Speech, Etc. also violates the balance of interests.

Therefore, the Provision Prohibiting Speech, Etc. violates the rule against excessive restriction, and thus infringes upon the freedom to engage in election campaigns.

4. Provision Prohibiting Documents and Printed Matter

Constitutional Court Decision 2011Hun-Ba17, etc. on April 24, 2014, ruled that this provision does not violate the rule against excessive restriction, and therefore does not infringe upon the freedom to engage in election campaigns or the freedom of political expression. There has been no change of circumstances that requires this precedent to be overturned, and therefore this position remains valid in this case.

5. Provisions on Prohibition of House-to-House Visits

The Provisions on Prohibition of House-to-House Visits aim to guarantee the fairness of elections and to protect the privacy of voters, and thus serve a legitimate purpose and provide an appropriate means. Considering the history of elections and political realities in Korea, in which the vestiges of illegal elections and bribery still remain; the possibility that the fairness of elections may be undermined, which is inherent in the method of house-to-house visits; the availability of other campaigning methods suited to the characteristics of each election, aside from house-to-house visits; and the fact that the prohibition does not extend to open places where people have freedom of movement and are frequented by many persons, the prohibition of house-to-house visits cannot be deemed an excessive restriction. Thus, the provisions do not violate the principle of minimum restriction. The extent of the restriction of fundamental rights imposed by the Provisions on Prohibition of House-to-House Visits are no larger than the public interest of seeking fair elections and protecting privacy, and therefore the Provisions on Prohibition of House-to-House Visits do not violate the balance of interests.

Summary of Opinion of Three Justices as to the Unconstitutionality of the Proportional Representative Deposit Money Provision

The legislative purpose of requiring deposit money in an electoral system can be interpreted differently depending on the type or nature of the election; method used for campaigning; number of candidates allowed to run and whether this can be limited; the election culture and the political culture. The legislative history does not show a clear legislative intent for adopting the Proportional Representative Deposit Money Provision.

First of all, given the role of political parties in this party-based democracy, and the strict establishment procedures and registration

requirements they are subject to, the purpose of preventing the elections from being crowded with multiple political parties, in other words preventing actual participation of political parties in elections, cannot be presented as a legislative purpose. Meanwhile, it is possible for elections of local constituency members of the National Assembly to be crowded with an indefinite number of candidates. However, in cases of elections of proportional representative National Assembly members, only political parties that have fulfilled the establishment procedures and registration requirements, and can thus play a part in forming the public’s political views, can recommend candidates, and the number of candidates that can be recommended by political parties is also limited to a fixed number (47). Accordingly, this prevents any concerns that a candidate may run for election with a lack of sincerity and integrity, as may be the case of elections for local constituency National Assembly members. Furthermore, as a rule, campaigning is led by the political party, while the candidate can only participate in the election campaign to a limited extent compared to elections of local constituency National Assembly members. Therefore, concerns that a rise in the number of candidates recommended by a political party will directly lead to overheating or corruption in the elections are unfounded. In light of this, the purpose of the Proportional Representative Deposit Money Provision, which is presumably to prevent insincere recommendations of candidates so as to avoid an increase in duties or costs related to election management, lacks legitimacy. Moreover, a purpose seeking such administrative public benefits is based on the presumption of illegal conduct that has not yet occurred. Any procedural irregularities that are committed in the course of an election can be sanctioned after their occurrence, and it is hard to justify any severe restriction on the freedom of political party activities - which are instrumental in forming political opinion in a representative democracy - merely for the purpose of administrative public benefits. Furthermore, in cases of a political party where the entire deposit reverts to the state for being unable to satisfy the requirements for return, fines cannot be deducted from the deposit money, which means that this

legislative purpose is invalid. In other words, the Proportional Representative Deposit Money Provision does not serve a legitimate purpose.

Large deposits run contrary to the intentions of the proportional representative system, holding back minor groups from political participation, and being of no help in the promotion of party politics. Therefore, the Proportional Representative Deposit Money Provision does not provide an appropriate means, and as in the Court’s opinion, does not satisfy the rule of minimum restriction or the balance of interests. In summary, the Proportional Representative Deposit Money Provision violates the principle against excessive restriction, and infringes upon the right to hold public offices, thus violating the Constitution.

Summary of Opinion of Three Justices as to the Unconstitutionality of the Provision Prohibiting Documents and Printed Matter

The Provision Prohibiting Documents and Printed Matter prohibits everyone - candidates and the general public alike - from expressing views through any type of document or printed matter, from 180 days before the election date, thus prohibiting all types of political expression including those that are not likely to undermine the fairness of elections. This violates the principle against excessive restriction and thus infringes upon the freedom of political expression.

Summary of Opinion of Two Justices as to the Unconstitutionality of the Provisions on Prohibition of House-to-House Visits

Campaigning for elections by making door-to-door visits is the easiest way to meet voters in person, with no particular preparations or capital required, and can provide more intuitive, crucial data compared to information acquired through other types of media. This method is particularly useful in rural areas sparsely populated and inhabited by

older voters, where information acquired through visits in person is of great value, and also offers the chance to promote a political party regardless of the party’s name recognition or political influence. Given such advantages, campaigning for elections through house-to-house visits should be permitted. Any overheating that this may cause can be curbed by limiting the scope of people that can conduct door-to-door visits, or by using the method only in cases of households that wish to respond, while illegal campaigning through forced entry or the provision of money and goods can be regulated through ex post facto criminal punishment imposed under the Criminal Act or the Public Official Election Act; necessary mitigation or discharge for persons who voluntarily surrender to the police; protection of and payment of rewards to people who report election crimes, etc. Notwithstanding these many options, the Provisions on Prohibition of House-to-House Visits entirely prohibit campaigning in the form of door-to-door visits, and therefore violate the rule of minimum restriction.

The freedom to engage in election campaigns or freedom of political party activity restricted by the Provisions on Prohibition of House-to-House Visits largely outweigh the public interest of fair elections or respect for privacy sought by the provisions, and therefore the Provisions on Prohibition of House-to-House Visits violate the principle against excessive restriction, and thus infringe upon the freedom to engage in election campaigns.