11.Unlawful Distribution or Posting of Documents and Printed Materials Case

[26-1(A) KCCR 628, 2011Hun-Ba17, 2012Hun-Ba391(consolidated), April24, 2014]

In this case, the Court upheld the constitutionality of Article 255 (2) 5 of the Public Official Election Act (amended by Act No. 9974, Jan. 25, 2010) concerning “a person who distributes or posts any document or other printed materials in contravention of Article 93 (1),” which bans and penalizes anyone who distributes or posts documents and other printed materials containing the contents supporting, recommending, or opposing a political party 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 to the election day.

Background of the Case

A. 2011Hun-Ba17

The complainant was prosecuted on charges of violating Article 255 (2) 5 and Article 93 (1) of the Public Official Election Act by posting documents that oppose the Democratic Party on seven occasions starting from 17: 35 on July 26, 2010 to October 19, 2010 with the intention of influencing the parliamentary by-election in Gwangju ○○○-Gu on July 28, 2010 and re-election for the Mayor of Gwangju ○○○-Gu Office on October 27, 2010 (2010Gohap518, Gwangju District Court).

With the above case pending, the complainant filed a motion requesting constitutional review of the aforementioned provision of the Public Official Election Act (2010Choki1323, Gwangju District Court), but had the motion denied and was sentenced to a fine of 1 million won

on December 22, 2010. Thus, the complainant filed the constitutional complaint in this case on January 19, 2011.

B.2012Hun-Ba391

Complainant Kwon ○-Hun is the Head of ○○○ Team in the New Progressive Party, and complainant Park ○-Gyun is a member of the same Party. The two complainants were indicted on charges of violating Article 2 (5) and Article 93 (1) of the Public Official Election Act—complainant Kwon was charged with making 30,000 copies of printed materials requesting support for the New Progressive Party and having them shipped to every city and provincial chapters of the Party on March 9, 2010 with the purpose of influencing the 19th National Assembly election held on April 11, 2012, while complainant Park was charged with distributing, with two unknown persons, 4,598 copies ofthe said printed materials in areas including ○○-Dong, ○○-Gu, Incheonstarting from March 9 to 12, 2012 (2012Gohap963, Incheon District Court).

The complainants, with the above case pending, filed a motion challenging the constitutionality of Article 93 (1) of the Public OfficialElection Act (2012Choki2439, Incheon District Court) but had itdeniedon October 19, 2012, with complainants Kwon and Park being sentenced to a fine of 800,000 Korean won and 500,000 Korean won,respectively. On November 6, 2012, they filed the constitutional complaintin this case.

Subject Matter of Review

The subject matter of review in this case is the constitutionality of Article 255 (2) 5 of the Public Official Election Act (amended by Act No. 9974, Jan. 25, 2010) concerning “a person who distributes or posts any document or other printed materials in contravention of Article 93 (1).” The provision at issue and relevant provision are as follows:

Provision at Issue

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)

Relevant Provision

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 (the time 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 acts falling under any of

the following subparagraphs:

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

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

Summary of Decision

1. Freedom of Election Campaigning and Fair Election

“Fair election” requires the protection of the citizens’ freedom of election and equal opportunity for election campaigning, etc., so without fair election, there is no guarantee of freedom of election or equal opportunity for election campaigning, etc. in the true sense of the word. Therefore, under the representative democratic system, freedom of political expression such as election campaigning is protected on condition of fair election, and therefore the fairness of election functions as a conditional requirement for the enforcement of political speech.

2. Conformity with Void for Vagueness Doctrine

The phrase “with the intention of influencing the election” in the provision at issue indicates an intention to take action that practically has the same effect as election campaigning on the preparation process, campaigning, results, etc. of elections from “180 days before the election day” to the “election day,” the time frame when the candidate or the political party is expected to formulate plans and start preparing to win election. Also, whether such intention exists can be reasonably decided in consideration of numerous circumstances including the relationship

between the perpetrator and the candidate and political party, the substance and type of action, the background and result of action, and the circumstance in which the action took place. Therefore, the provision at issue is not void for vagueness.

3. Protection of Freedom of Election Campaigning and Political Expression

The provision at issue prohibits unrestricted production and distribution of documents or other printed materials with the purpose of preventing unfair competition in election campaigning and imbalance between candidates in terms of their financial means, and to guarantee free andfair election. Therefore, it serves a legitimate purpose and appropriate means.

In addition, the provision at issue neither violates the least restrictive means test nor fails to balance the legal interests given the following: the provision, in consideration of the Korean election culture, only regulates the “actions of expression that have the same effect as election campaigning” aimed at influencing the election from 180 days prior to the election to the election day, the period during which the planning and preparation of election campaigning actually begins; delivery andreceipt of information using documents or other printed materials are done in a unilateral and passive manner, in which case the communicatedinformation and opinions cannot be instantly corrected and their impact on the peace and fairness of election differs from that of online information exchanges; and as documents and printed materials can easily be manufactured and distributed by voters, the resulting consequences cannot be effectively prevented or regulated solely by regulating the candidate’s election expenses.

Therefore, the provision at issue does not violate the freedom of election campaigning or freedom of political expression.

Dissenting Opinion of 3 Justices

1. Freedom of Election Campaigning and Fair Election

The majority opinion states that freedom of political expression such as election campaigning is conditioned on the fairness of election, and that fair election functions as a conditional requirement for freedom of political speech. Yet, the statement that freedom of political speech, one of the fundamental rights, is allowed only on condition of fair election, is equivalent to placing a fair election limit on liberty rights, and this may invoke misconception of the relationship between freedom of expression and fair election.

Regulation to ensure fair election and maintain order should not be a uniform, comprehensive ban on political expression of the general public. It is all the more so since freedom and fairness in election are not always contradictory but at times mutually complementary. Fair election serves as a means to realize an election that accurately reflects the political intention of the public; it cannot be a constitutional objective in itself. Furthermore, granting general voters the right to political expression using printed materials does not necessarily harm fairness of election. It is the expressions such as dissemination of false information or slander that contain the risk of undermining fairness of elections, and so other legislative measures that regulate such expressions can protect fair election.

2.Protection of Freedom of Election Campaigning or Political Expression

The restriction of voters’ political expression using documents and other printed materials starting from “180 days before the election day” as set forth in the provision at issue is imposed for an excessively long period of time. Unlike candidates, voters are not given the freedom of expression using documents by law; in fact, they are completely

prohibited from exercising such right. The disparity in financial means between candidates is a matter that should be addressed by the provisions concerning election campaigning management organizations or election expenses, and the damage to fair election caused by malicious propaganda can be prevented by punishing dissemination of false information and slander. Additionally, the person who receives documents can accept written information only when he or she actively reads them, and it is also possible to engage in rebuttal, discussion, and correction of information through documents. The voters’ freedom of political expression should be encouraged in order to implement substantial democracy, but the provision at issue imposes general and complete restriction on such freedom for a prolonged period. Therefore, the provision at issue violates the rule against excessive restriction and infringes on the voters’ freedom of political expression.