Limits on the Period and Method of Election Campaign Case

[27-1(A) KCCR 407, 2011Hun-Ba163, April 30, 2015]

In this case, the Constitutional Court struck down the following provisions as unconstitutional: the main text of Article 59 of the former Public Official Election Act and Article 254 Section 2 of the current Public Official Election Act that prohibit election campaigns prior to the election campaign period; Article 255 Section 1 Item 18 of the current Act banning acts of obtaining any signature or seal impression as part of the election campaigns; Article 255 Section 2 Item 5 of the current Act restricting the distribution of printed materials, etc.; and Article 256 Section 2 Item 1 (h) of the former Act banning the installing, etc. of facilities.

Background of the Case

The complainant in this case was indicted on charges that “he, as the Head of Operations Steering Committee of the Environment-Friendly ○○○○○ Free Meal Service Group, resolved to engage in the campaigning for the candidates in favor of introducing free school meals and against those opposing it in the 5th nationwide local elections on June 2 and, in an effort to influence the election from 180 days prior to the election day to the election day, among others, installed, displayed, posted the banners, placards, signboards, and signs calling for the full introduction of eco-friendly free meals on 14 occasions from April 5 to May 16, 2010; distributed the printed materials along the similar lines as well as some badges representing eco-friendly free meals; collected signatures from voters to garner support for eco-friendly free meals; and engaged in election campaigns as such before the election campaign period and thereby violated the Public Official Election Act.” Consequently, the complainant was sentenced to two million Korean won in fines on February 18, 2011 and appealed to the appellate court. With the appeal pending, the complainant filed a motion requesting the

judicial review of Article 59, Article 90 Section 1, Article 93 Section 1, Article 107, and Article 254 Section 2 of the Public Official Election Act, but when it was denied on June 30, 2011, filed a constitutional complaint with this Court on July 28, 2011.

Subject Matter of Review

The subject matter to be reviewed in this case is the constitutionality of the following: ① the main text of Article 59 of the former Public Official Election Act (amended by Act No. 7681, Aug. 4, 2005 and later amended by Act No. 10981, Jul. 28, 2011) and a part of Article 254 Section 2 of the Act (amended by Act No. 9974, Jan. 25, 2010) concerning “any person who conducts an election campaign by using propaganda facilities or tools, various printed materials, etc.” (the stated provisions are hereinafter jointly referred to as the “No Pre-Election Campaign Clause”), ② Article 255 Section 1 Item 18 of the Act (amended by Act No. 7681, Aug. 4, 2005) (hereinafter “No Signature Campaign Clause”), ③ a portion of Article 255 Section 2 Item 5 of the Act (amended by Act No. 9974, Jan. 25, 2010) concerning “a person who distributes any writing, book, picture in contravention of Article 93 (1)” (hereinafter “Non-Distribution of Printed Materials Clause”), ④ a portion of Article 256 Section 2 Item 1(h) of the former Act (amended by Act No. 9974, Jan. 25, 2010 and later amended by Act No. 12393, Feb. 13, 2014) concerning “a person who installs, displays, posts any banners, other advertising material or facilities in contravention of Article 90 Section 1 Item 1 or distributes a label or other indicating materials incontravention of Item 2 of the same Section” (hereinafter “Non-Installmentof Facility Clause”).

Former Public Official Election Act (amended by Act No. 7681, Aug. 4, 2005, later amended by Act No. 10981, Jul. 28, 2011)

Article 59 (Period for Election Campaign)

An election campaign may be allowed during the period from the day

next to the closing date of candidate registration, to the day before the election day: Provided, That the same shall not apply to cases falling under any one of the following subparagraphs:

1. Where any preliminary candidate, etc. wages the election campaign pursuant to the provisions of Article 60-3 (1) and (2);

2. Deleted; and

3.Where a candidate or a person intending to become a candidate conducts election campaigns by utilizing the Internet homepages opened by himself

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

Article 254 (Violation of Election Campaign Period)

(2) Except as prescribed otherwise by this Act, any person who conducts an election campaign by using propaganda facilities or tools,various printed materials, broadcasting, newspapers, news communications,magazines, other publications, campaign meetings, symposiums, debates,native folks meetings, alumni meetings, neighbors meetings, other meetings,information and communications, the establishment of an organization for the election campaign or private organization, door-to-door visit and other methods prior to an election campaign period shall be punished by imprisonment for not more than two years or by a fine not exceeding four million won.

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

Article 255 (Unlawful Election Campaign)

(1) Any person who falls under any one of the following subparagraphs shall be punished by imprisonment for not more than three years or by a fine not exceeding six million won:

18.A person who obtains or causes another person obtain any signatureor seal impression, in contravention of Article 107

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

Article 255 (Unlawful Election Campaign)

(2) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than two years or by a fine not exceeding four million won:

5. A person who distributes, pastes, scatters, posts, plays, any writing, book, picture or causes another person to do so, in contravention of Article 93 (1), who makes or has another person make an advertisement or appearance, in contravention of paragraph (2) of the same Article, or who issues, distributes or demands any identification card, document or other printed materials, or makes another person do so, in contravention of paragraph (3)

Former Public Official Election Act (amended by Act No. 9974, Jan. 25, 2010, later amended by Act No. 12393, Feb. 13, 2014)

Article 256 (Violation of Various Restrictive Provisions)

(2) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than two years or by a fine not exceeding four million won:

1. A person who falls under any of the following items in connection with an election campaign:

(h) A person who installs, displays, posts, or distributes any propaganda materials, or makes another person do so, or makes and sells any symbol, or makes another person do so, in contravention of Article 90

Summary of Decision

1. Review of No Pre-Election Campaign Clause

As the “election campaign” in the No Pre-Election Campaign Clause can be interpreted as a proactive, premeditated action with an objective purpose and intention to make a candidate win or lose, among all actions required to support a certain candidate and garner votes to that end or to defeat a candidate, the Clause is not void for vagueness under

the principle ofnulla poena sine lege,or the principle of legality. The limit on the period of election campaigns is considered necessary and reasonable in light of its legislative purpose and content, the general form and practice of elections in Korea, the practical necessity of the restriction, etc. This form of regulation is not considered so overly restrictive as to make the freedom of election campaign irrelevant, and therefore the No Pre-Election Campaign Clause is not in violation of the freedom of political expression, etc. Since the Clause bans anyone from engaging in election campaigns before the election campaign period, it is considered not discriminatory and not in violation of the equality principle.

2. Review of No Signature Campaign Clause

In the same vein, the concept of “election campaign” in the No Signature Campaign Clause is not in violation of the void for vagueness doctrine under the principle of legality. The Clause has been legislated for the purpose of achieving fair elections, with due consideration given to the particularity of election campaigns through collection of signatures and seal impressions, the implication of such campaigns on the electoral reality, etc. Given that the Clause does not ban the acts of collecting signatures and seal impressions related to entire political issues but only regulates those aimed at election campaigning, and that only the constituents are prohibited from collecting signatures and seal impressions for election campaigns and non-constituents are not subject to this regulation, it is not considered to infringe on the freedom of political expression.

3. Review of Non-Distribution of Printed Materials Clause

The phrase “in an effort to influence the election” in the Non-Distribution of Printed Materials Clause refers to the intention to take action related to the preparatory process of elections, election

campaigns, election results, etc. that in effect amounts to election campaigning from “180 days before the election day”, during which candidates or political parties are expected to develop plans and begin preparation to win elections, to the “election day”, so the Clause is not void for vagueness. The current Public Official Election Act allows for the registration of preliminary candidates and permits just them to engage in election campaigns prior to the election campaign period, but in a limited manner through certain designated methods such as handing out name cards. If the distribution and posting of documents and printed materials is allowed altogether, the regulations under the Public Official Election Act may be rendered virtually irrelevant and damage the fairness of elections. Taking into account the fact that, among others, only the “expressive acts that amount to election campaigns” aimed at influencing elections from 180 days before the election day to the election day are regulated in consideration of the nature of Korea’s election culture, it is not considered that the Clause infringes on the freedom of political expression, including the freedom of election campaigning.

4. Review of Non-Installment of Facility Clause

The same phrase “in an effort to influence the election” in the Non-Installment of Facility Clause is not void for vagueness for the same reason above. Pursuant to the current Public Official Election Act, only the preliminary candidates are allowed to engage in election campaigns before the election campaign period and only certain methods are permitted, such as wearing shoulder belts or labels. If installing signboards, tablets, or hanging boards were fully allowed, the regulations under the Public Official Election Act would be rendered insignificant in practice and may harm the fairness of elections. The scope of limited freedom is only confined to, among a variety of conceivable election campaigns, certain methods and contents of election campaigns that particularly contain a high risk of causing substantial damage, and as the

election campaign practically begins 180 days before the election day, this kind of regulation does not exceed the minimum extent required to prevent any damages and therefore does not violate the freedom of political expression.

Opinion by Three Justices Dissenting from No Signature Campaign Clause

Since voters can cast a ballot free from any papers they may have signed or sealed prior to voting, signatures and seal impressions are hardly considered a disruption to fair voting based on the free will of voters. Even if a ban on signatures and seal impressions in elections is needed for fair voting, this purpose can be served fully by limiting the duration of the ban on signature campaigns to a reasonable timeframe that can affect elections. Nevertheless, the No Signature Campaign Clause does not specify the period of banning campaigns to collect signatures or seal impressions, and so the general public is exposed to a constant risk of having one’s rights limited in terms of political expression. The issue of importance in the elections is to reflect the public will more accurately to the election results, but the Clause constitutes an excessive limitation on the freedom of expression as it regulates even those signature campaigns that were originally permitted previously. Eventually, the Clause banning and punishing political expressions continuously and completely fails to satisfy the least restrictive means requirement and therefore infringes on the complainant’s freedom of political expression by violating the rule against excessive restriction.

Opinion by Three Justices Dissenting from Non-Distribution of Printed Materials Clause and Non-Installment of Facility Clause

The Non-Distribution of Printed Materials Clause limits written political

expressions by general voters from “180 days before the election day”, and the period of ban is excessively lengthy. The fairness of elections undermined by financial disparity and black propaganda can be fully protected by regulating the management bodies and expenses of election campaigns or punishing the spread of false information and slander. A document as a medium through which information is delivered becomes effective only when the intended receiver reads it proactively, so it is possible that rebuttal, debate, and correction can take place by way of documents. The general voters’ right to political expression should be encouraged in order to realize real democracy, but the Clause imposes a general, total ban on it and thus infringes on the complainant’s freedom of political expression.

Although printed materials are mediums that are more common and accessible than facilities, the same assessment of the Non-Distribution of Printed Materials Clause mentioned above applies to the Non-Installment of Facility Clause. The Non-Installment of Facility Clause limits political expression using facilities from “180 days before the election day”, which is too lengthy. The possible damage to the fairness of elections caused by imbalance stemming from financial gap between candidates and black propaganda can also be fully prevented through regulations ofmanagement bodies and expenses of election campaigns or punishment ofspreading false information and slander. Therefore, the Non-Installment of Facility Clause, for the reasons stated above, violates the rule against excessive restriction and thus infringes on the complainant’s freedom of political expression.