Petition to Invalidate the Notice of Compliance Request for President's Duty of Impartiality toward Election

[20-1(A) KCCR 139, 2007Hun-Ma700, January 17, 2008]

In this case, the Constitutional Court holds: 1) President's remarks violate the regulations of the Public Official Election Act, Article 9 Section 1; and 2) the National Election Commission's Notices of request for compliance with President's duty of impartiality toward election and the Public Officials Act, Article 9 Section 1 as the basis of the Notices do not violate the Constitution.

Background

1.On June 2, 2007, complainant made a speech at an open meeting organized by Evaluation Forum on Participation Government("EFPG"). During the speech, complainant made remarks that "it will be a problem if foreign newspapers comment that the Korean leader is the daughter of a dictator." In addition to this, complainant further made criticism against a specific party. Upon these remarks, the Grand National Party filed a complaint with the National Election Commission ("NEC") claiming that the complainant's aforementioned remarks violate "the Public Official Election Act Article 9 Section 1." (hereinafter, referred to as "POEA", the "Instant Provision", respectively) On June 7, 2007, NEC held a meeting to review complainant's speech and found it violated the relevant law. Subsequently, NEC delivered the 'Request for performing duty of impartiality of President to complainant and made it known to the public through a press release.

2.Complainant received an honorary doctoral degree on politics from Wonkwang University on June 8, 2007 and delivered a speech. During the speech, complainant made criticism against a major Presidential Candidate from an opposition party regarding his propose policy of tax cut and a grand canal. Further, on June 10, 2007, complainant attended the 20th anniversary of the June Tenth

democracy movement and stated that a major candidate of the opposition party is against democracy. Finally, on June 13, 2007, during the interview with Hankyoreh Newspaper at the President's Office, complainant said that he will support Open Woori Party's candidate. After this speech, the Grand National Party filed another complaint with NEC. Subsequently, on June 18, 2007, NEC held a meeting to review the complainant's remarks and found they violated the abovementioned law. NEC delivered the request for performing duty of impartiality of President to complainant and made it known to the public through a press release. Upon receipt of these notices, on June 21, 2007, complainant filed a constitutional complaint claiming that NEC's notice of June 7, 2007 and June 18, 2007 ("Notices") infringe his individual freedom of expression of political opinions pursuant to the Constitutional Court Act, Article 68 Section 1.

Summary of Decision

The Constitutional Court held that Notices and the Instant Provision are constitutional. Five Justices joined the majority opinion; two Justices rendered the decision of dismissal for lack of justiciability; and two Justices rendered the decision of unconstitutionality.

1.Legal issues are as follows: 1) whether the petition satisfies justiciability requirement; 2) the Instant Provision as the basis of Notices in the instant case is unconstitutional; and 3) Notices infringe complainant's basic rights.

2. With respect to justiciability

A.Notices in the instant case constitute warnings based on NEC Act, Article 14 Section 2. This warning is one of restrictive measures on the violation of election law and the recipients of this warning should comply with it. Further, considering the constitutional status of NEC and President's duty to obey law and the Constitution, Notices in the instant case are not mere recommendation without forcibility and, thus, constitute the exercise of governmental power which may cause chilling effects on the freedom of expression.

B.In principle, a governmental entity cannot bring a constitutional complaint because it has the duty to protect citizen's basic rights as a role model. However, it is not always true. The basic rights of a person will not be recognized if the exercise of governmental power and relevant law restrict the rights and the scope of work of a person performing the public duty. However, the basic rights of a person will be recognized if the same measures restrict the constitutionally guaranteed basic rights of an individual citizen. Under this principle, it is difficult to find that complainant's remarks at issue are wholly related to President's power and public duty because they are mixed with the private and public nature. Therefore, complainant is justified to be a party in this case because President's individual freedom of expression could be restricted in the instant case.

3. Issue of Unconstitutionality

A. Whether Public Official Election Act, Article 9 Section 1 is unconstitutional

(1)This Instant Provision prescribes that "public officials and others who should keep the duty of political impartiality shall not exert improper influence to elections and shall not act in a manner which may influence the results of elections." Based on the review of the legislative intent, the legislative process, the range of the subjected person and the nature of election process, we find the Instant Provision is not against the rule of clarity.

(2)Despite President's political role in campaign work, priority should be given to President's duty of impartiality toward election. The rule against excessive restriction is not violated because the Instant Provision restricts President's acts which may give improper influence to the result of election during a campaign season. Therefore, the Instant Provision is not unconstitutional.

B. Whether the Instant Provision infringes basic rights

(1)The Notices are clear enough to advise complainant of the

substance of 'the acts against Election Act'. Further, respondent did not violate complainant's basic rights when it did not give complainant the chance for response before issuing Notices.

(2)During the opposition party's Presidential Primary, Complainant continuously and repeatedly criticized the candidates of the opposition party and their policies at public meetings which attracted people's attention. These remarks constitute the acts of influence to the result of election through abuse of power. We do not believe that respondent misinterpreted and misapplied the Instant Provision when respondent issued Notices. Therefore, the Notices in the instant case do not infringe complainant's basic rights.

4. Dissenting opinion on justiciability (dismissal)

A. Justice Kim Jong-dae

Notices in the instant case are not based on NEC Act, Article 14 Section 2. Further, they are mere cooperation request without any legal effects. For this reason, this constitutional complaint should be dismissed.

B. Justice Lee Dong-heub

Because the chilling effects to complainant are caused by Notices' practical and political impacts not from legal impact, Notices in the instant case do not constitute the exercise of governmental power. It is almost impossible to divide President's public and the private area. Further, the remarks at issue are not unrelated to the execution of President's publicduty. Therefore, complainant's legal standing is not found and, subsequently,this constitutional complaintshould be dismissed.

5. Dissenting opinion on the merits (unconstitutional)

A. Justice Cho Dae-hyen

The elected and appointed high officials like President are allowed to conduct campaign work which may substantially influence the result of election. The Instant Provision should not be interpreted as a special provision of Public Officials Act. It is unreasonable that the members of the National Assembly and local assemblies fall into a different category of public officials from other elected and appointed high officials. Since the elected and appointed high officials like President should not be subjected to the Instant Provision, the Notices in the instant case should be invalidated as they infringe complainant's basic rights. Further, respondent issued Notices by including President in "public officials" of the Instant Provision. By doing so, respondent misinterpreted the InstantProvision and, therefore, this interpretation should be found unconstitutional.

B. Justice Song Doo-hwan's dissenting opinion

The Instant Provision is a general and declaratory provision which cannot be the basis of the restrictive measure. Even if it may be a concrete norm, the nominated and elected high officials like President should not be subjected to the Instant Provision based on the review of: 1) the purpose and limitation of the freedom of political expression under the Constitution; 2) President's constitutional status; and 3) the relation to the regulation on public officials system. Further, the Instant Provision is very unclear about the definition of the regulated acts. Therefore, Notices in the instant case infringe complainant's freedom of political expression and, therefore, should be invalidated in lack of legal basis. Finally, respondent's statutory interpretation is unconstitutional when it subjects President to the Instant Provision.

--------------------------------------‐

Parties

Complainant

Roh, Moo-hyun

Represented by Attorney Ko Young-koo and seven others from "Si Min" Law Firm

Respondent

National Election Commission, Acting Chairman Kim Bum-jin and 1other.

Represented by Attorney Yu Joon-sang and 2 others.

Holding

Complainant's constitutional complaint is denied

Reasoning

1. Introduction of the Case and Subject Matter of Review

A. Introduction of the case

(1)The complainant is the citizen of the Republic of Korea and has been serving as the President since February 25, 2003. The respondent is the chairman of National Election Commission ("NEC") which supervises the fairness of national elections and the administration of political parties pursuant to the Article 114 of the Constitution.

(2) Background of "Request for performing duty of impartiality of President"

(A) On June 2, 2007, complainant made a speech under the title of "where Korea should be headed in the 21st century" in an open meeting organized by Evaluation Forum on Participation Government ("EFPG"). During the speech, complainant stated that "it will be a problem if foreign newspapers comment that the Korean leader is the daughter of a dictator," "the campaigns for the great canal, train ferry are lack of creativity and the investment for great canal cannot provide short returns," "when I was the Minister of the Department of Land, Transport and Maritime Affairs, I have already concluded that

the train ferry project lacked business feasibility," and "it will be devastating if Grand National Party wins the election …… the Grand National Party is an irresponsible party …… if they win, the regionalism will get even more severe."

The Grand National Party filed a complaint to NEC claiming that the complainant's aforementioned remarks violate "the Public Election Law Article 9 Section 1."

(B) On June 7, 2007, NEC held a meeting to review complainant's speech and found it violates the relevant law. Subsequently, NEC delivered the 'Request for performing duty of impartiality of President ("1st notice")' to complainant and made it known to the public through media an exposure. NEC's finding was as follows: "While the presidential Election Day is coming, President, who is the highest authority of the Executive and a public servant to the people, participated in a webcasted mass meeting and criticized a specific political party as well as its potential candidate. This speech is found to be more than the expression of one's idea as it influences the election. Therefore, the speech constitutes the violation of the duty of impartiality of a public official to election prescribed by the POEA, Article 9." (hereinafter, referred to as "POEA", the "Instant Provision", respectively)

(3) Background of the respondent's 'the second Request for performing duty of impartiality of President' made on June 18, 2007.

(A) Complainant received an honorary doctoral degree on politics from Wonkwang University in Iksan-City on June 8, 2007 and delivered a seventy minutes speech on 'the advanced democracy in the area of politics, welfare and press." During the speech, complainant made statements as follows: "Lee Myung Bak's proposed tax cut will cause 680,000,000,000 Won of government's income deficit. With this amount of money, we could reform our education system and improve welfare system. Do not be fooled by this proposed tax cut. He says he will build the great canal with private investment. But, what private investment is he talking about? Doesn't he already make a political judgment? He keeps saying my administration has failed. But, Mr. Lee,

you know what? Whatever you can do, I can do better. Do it as well as me. I am telling you".

Further, on June 10, 2007, complainant attended the 20th anniversary of the June Tenth democracy movement and made the following congratulatory remarks: "Those who were in power in the past allied with conservative press have objected to reform and progress. They showed their true identities as corrupt dictators when they accused the legitimately elected current administration of pro-North leftists and made a nonsense argument saying that a corrupt regime is better than an incompetent regime.

Furthermore, they claim the incompetency of democratic groups and attempt to Gain the power relying on the old glory of the development-oriented dictatorship instead of proposing new democratic value and policy." In addition, during the interview with Hankyoreh Newspaper at the President's office, complainant said, "if Evaluation Forum on Participation Government would follow my direction, then wouldn't it be important where I am oriented? I support Uri Party (governing party)'s candidate. It won't change. I support the governing party's candidate and if the candidate endorses anybody else, then I will support the new candidate."

(B) After this speech, the Grand National Party filed another complaint to NEC for these two comments made at Wonkwang University and Hankyoreh Newspaper claiming that they violate "POEA, Article 9."

On June 18, 2007, NEC held a meeting to review the complainant's remarks and found they violated the abovementioned law. NEC delivered the 'Request for performing duty of impartiality of President ("the 2nd Notice) to complainant and made it known to the public through media. NEC's finding was as follows: "We find President defamed the opposition party and its potential presidential candidate while he supported the governing party. Since President is the highest authority of Executive and holds a role to supervise fair elections, hereby, Mr. President is advised to abstain from making any speech which may influence elections. It is our wish that President makes more efforts to ensure that this coming 17th Presidential election becomes a fair one and a good opportunity for further development of

our country and democracy.

(4) Complainant's Constitutional Complaint

On June 21, 2007, complainant filed a constitutional complaint claiming that NEC's 1st and 2nd Notices ("Notices" when referred to both 1st and 2nd Notices) infringe upon complainant's freedom of expression of political opinions pursuant to the Constitutional Court Act, Article 68 Section 1.

B. Subject matter of review

(1) Subject matter of review

Complainant claims that the "Notices" infringe his individual basic rights. Further, complainant argues that President is the highest government official having the freedom of expression on comprehensive political activities and therefore should be able to enjoy a certain amount of the freedom of political expression during an election. Complainant contends that the Instant Provision is unconstitutional because it prohibits this freedom and, consequently, NEC's Notices stemming from the Instant Provision are also unconstitutional. He further argues that even if the Instant Provision is constitutional, Notices are unconstitutional because NEC's interpretation of the Instant Provision is unconstitutional and misapplication.

In other words, complainant's argument is: 1) the Instant Provision is unconstitutional and, therefore, Notices are unconstitutional; and 2) even if the Instant Provision is constitutional, Notices are unconstitutional. Although the subject matter of this case is whether "Notices" infringe complainant's basic rights, the Instant Provision is the premise to decide whether Notices constitute unreasonable governmental power by violating complainant's basic rights and therefore should be also reviewed. However, the Instant Provision will be reviewed only when the petition satisfies relevant legal requirements. The review of the constitutionality of the Instant Provision, therefore, will be made after the review on justiciability of the petition.

(2) The Instant Provision

POEA (originally enacted as Code 4739 'Public Officials Election and Prevention of Election Corruption Law" of 1994 and revised to Code 7681 of 2005), Article 9 ("Duty of Impartiality of Public Officials") (1) "Public Officials and others who should keep the duty of political impartiality (including organs and bodies) shall not exert improper influence to elections and shall not act in a manner which may influence the results of elections."

2. Arguments of Complainant and the Related Bodie

(intentionally omitted)

3. Review on Justiciability of this Constitutional Complaint

A. Whether Notices establish the exercise of governmental power which may infringe upon one's basic rights

(1)The Constitutional Court Act, Article 68 Section 1 prescribes; "any person who claims that his basic rights guaranteed by the Constitution have been violated by the exercise or non-exercise of governmental power" may file a constitutional complaint. Here, governmental power means 'prerogative action' by any governmental body and public entity which exercise judicial, executive and legislative power. (13-1 KCCR 676,692, 99Hun-Ma139, March 2, 2001). Also, the exercise or non-exercise of the governmental power should have legal effects to citizen's basic rights and duty and consequently cause damages to complainant in his/her legal relation and status (KCCR 5-2, 510, 516 KCCR, 92Hun-Ma 293, November 25, 1993; 10-1, KCCR 15, 28, 97Hun-Ka10, February 27, 1998; 15-2 KCCR 350, 355, 2003Hun-Ma694, November 27, 2003).

(2) The basis and the nature of Notices

The Notices confirm that complainant's specific remarks violates the Instant Provision and consequently make requests that complainant

abstain from further violation in the future. Originally, respondent did not specify the basis of Notices when they delivered the Notices to complainant. However, when respondent filed an answer to the complaint, it stated that the basis be NEC Act, Article 14 Section 2. Later, at supplementary answers, respondent added the Constitution, Article 115, POEA, Article 5, and Article 272-2 Section 5 to the basis while it states that Notices are mere "cooperation request" issued to President, a public entity.

The Constitution, Article 115 and "POEA", Article 5 are ordinary provisions which empower NEC to make relevant orders and cooperation requests to related administrative bodies for necessary administrative measures such as voters' list. Therefore, these provisions cannot be construed as the basis of Notices. "POEA," Article 272-2 Section 5 cannot be construed as the basis either because it prescribes that NEC officials may stop and prevent the violation of the election law on the site and yet is silent on post-violation measures and cooperation requests. For this reason, Notices in the instant case are based on Article 14 Section 2 of NEC Act and should be considered as 'warning' because they found complainant's remarks violated POEA and asked for no further violation. (One can argue that Article 14 Section 2 of NEC Act can not be a pertinent provision of Notices in the instant case because Notices were issued through a full-member meeting of NEC while the said provision enumerates only the members and staffs of NEC as a subject person of measure. However, as long as Notices are issued under the name of the Chairperson of NEC, it can be found that the Chairperson of NEC issues Notices as the status of a member of NEC.)

Even if respondent has made Notices without any legal basis, respondent, as the holder of governmental power, must have exercised governmental power when it made notices which restricted complainant's basic rights.

(3) Possibility of infringement of basic rights by Notices

(A) Respondent argues that Notices confirm that President's remarks violate the duty of impartiality and deliver the requests for future cooperation. Notices, in their natures, are recommendations without

forcibility and therefore cannot affect complainant's legal relation and status.

The Notice under "POEA," Article 14 Section 2 is one of the measures to regulate the violations of the law which should be followed by the recipients. This law does not have any provision to punish violators. Therefore, it is unlikely that the violators will be penalized. However, it is possible that a NEC staff may file a criminal complaint against a violator when the violator does not follow NEC's notice. In this regard, it is unlikely that NEC's notice does not affect complainant's legal status.

Having been founded to ensure fair elections, NEC is an independent constitutional organ along with the National Assembly, administration, supreme courts and constitutional courts (the Constitution, Article 114 Section 1). A NEC commissioner' term is guaranteed by law (Article 114 Section 3) and they are appointed equally by President, The National Assembly and the Chief Justice of the Supreme Court (Article 114 Section 2). Meanwhile, President shall be responsible of protecting the Constitution (the Constitution, Article 66 Section 2), respecting other constitutional organs' decisions and exercising his or her power within the law. If President violates the Constitution and other laws in line of work, President could be subject to impeachment (the Constitution, Article 65 Section 1, the Constitutional Court Act, Article 48: In fact, President was subject to impeachment when NEC found his specific remarks violated the instant provision. 16-1, KCCR 609-669, 2004Hun-Na1, May 14, 2004). In the instant case, NEC Chairperson delivered the request for cooperation to President directly after the meeting of NEC. Under the circumstances, it is unlikely that Notices are simple recommendation without forcibility and negative effects to complainant's legal relation (although the cause of action for impeachment ultimately arises from the fact that complainant's act violates the Instant Provision, Notices may constitute the cause of action because they may trigger the impeachment action after they make a legal decision on complainant's violation).

(B) A public official is a public servant to the people and is prohibited from political activity (Public Officials Act ("POA"), Article

65). Although President is the head of the Executives (the Constitution 66 Section 4), he or she is allowed to do political activity (POA, Article 3 Section 3, 'Regulation on scope of public official under POA, Article 3 Section 3', Article 2 Section 1), may become the member of a political party(Political Party Act, Article 22 Section 1 Item 1 Proviso) and enjoys the freedom of political expression unlike other public officials.

Since the Constitution guarantees the freedom of political expression for every citizens (the Constitution, Article 21), it is violated if the exercise of the governmental power restricts the freedom of expression and causes chilling effects even without criminal penalty.

Although it is not possible that complainant will not be penalized by not following Notices, it is obvious that Notices will cause complainant chilling effects. Further, since it is difficult that complainant can seek legal remedy from Courts, Notices of the respondent as a constitutional organ is the final and legal finding and thus is highly likely to make restrictive effects to complainant's basic rights.

(4) Distinguishable factors from 2002Hun-Ma106

The facts of 2002Han-Ma106 is as follows. An internet media named "Oh My News" coordinated an 'open interview' with seven candidates for Democratic Party 2002 presidential primary. On February 1, 2002, NEC Seoul Office Chairperson delivered a notice to stop the said event because it violates "POEA" Article 254. The said notice warned that NEC would prevent it if it was still to be held. Despite the warning, "Oh My News" went ahead and attempted to hold the event on February 5, 2002 and, subsequently, NEC blocked the event by dispatching fifty NEC staffs. Upon this prevention, "Oh My News" filed a constitutional complaint for: 1) the notice made by NEC Seoul Office Chairperson; and 2) Prevention of the "Open Interview." Constitutional Court, upon dismissal of the petition, said (the second issue of the petition is not related to the instant case and therefore not quoted) that NEC's notice did not constitute 'the exercise of governmental power' because it was delivered in the form of 'cooperation request' or 'announcement'. (15-1 KCCR 223-240,

2002Hun-Ma106, March 27, 2003). Further, the notice simply delivered the opinion of an administrative body on the issue of the possible violation of "POEA" against the scheduled event and NEC's prevention measures in case of the procession of the event. Even if the notice contains a warning that respondent may impose an administrative sanction against complainant for the violation of the law, it is just an opinion of an administrative body and does not affect the legal nature of the notice.

The above mentioned case is distinguishable from the instant case because it prevents an event scheduled in the future and deals with the NEC's opinion which was made by NEC and delivered to "Oh My News" before the violation occurs. In the instant case, however, respondent confirmed that complainant's past act violated the law and requested for non-violation. In conclusion, the former case does not create legal effects because it is a cooperation request as a recommendation without forcibility. However, Notices in the instant case infringe on complainant's basic rights by making an authoritative interpretation and a warning and therefore the former case should be distinguishable.

B. Review on the subject person with basic rights

(1)Since complainant argues that his basic rights as a natural person, not as the President was infringed, this Court will review whether a government body, concurrently having the status of an individual person, may be qualified for filing a constitutional complaint. It is the principle that a state, a governmental body, a branch of a government and a public person are the holder of public authority in order to protect the basic rights of people and may not be the parties to file constitutional complaints (6-2 KCCR 477, 480, 93Hun-Ma120, December 29, 1994; 13-1 KCCR 178, 185, 2000Hun-Ma149, January 18, 2001). However, it is not always true that a natural person holding a governmental office cannot file a constitutional complaint at all. Usually, the basic rights of a person will not be recognized if the exercise of governmental power and relevant law restrict the rights and the scope of work of a person performing the public duty at the broad meaning of governmental

organization. However, the basic rights of a person will be recognized if the same measures restrict the constitutionally guaranteed basic rights ofa citizen. (7-1 KCCR 463, 95Hun-Ma53, March 23, 1995; 10-1 KCCR 480, 97Hun-Ma100, April 30, 1998; 11-1 KCCR 675, 98Hun-Ma214, May 27, 1999; 18-2 KCCR 190, 2003Hun-Ma758, July 27, 2006; 18-2 KCCR 190, 2003Hun-Ma758, July 27, 2006). In conclusion,this issue shall be reviewed in relation to 1) the nature of the basic rights at issue; 2) the closeness between public duty and restricted basic rights; and 3) distinguishable factors between public duty and private act.

Despite some limitations, President is a citizen with basic rights and a private person who may work for a political party. Meanwhile, President is a constitutional body with the duty to serve all the citizens (16-1 KCCR 609, 638, 2004Hun-Na1, May 14, 2004).

(2)Notices in the instant case apply to President's private critical remarks against the opposition party and its possible Presidential candidate at several events. Since the said events are deemed to be private meetings, however, it is difficult to find that President's remarks are in line of his duty. Further, most remarks at issue are President's individual political remarks and are not closely related to his Presidential rights and duties. Although respondent made it clear that Notices are issued to President not a private citizen, the review on a person's basic rights should be conducted from the perspective of Notices' substance instead of their format. In this regard, complainant's remarks are be made not entirely in line of his public duty but in the mixture of his public duty and private rights. After all, complainant, President enjoys limited capacity of freedom of expression by being a natural person because the freedom of expression is constitutionally guaranteed powerful rights.

(3)As complainant contends his basic rights, as a natural person is violated by Notices, we find that complainant is qualified for a natural person under the above mentioned analysis.

C. Other justiciability issues

(1)Notices in this case are legally related to complainant who claims his rights as a natural person are violated. Therefore, complainant has a legal standing.

(2)Exhaustion of remedies is required (Constitutional Court Act, Article 68 Section 1) except that 1) complainant made a legitimate error by not seeking the remedies at ordinary courts; 2) there is almost no possibility of recovery at ordinary courts; and 3) there is no procedural certainty on a specific complaint at ordinary courts. In these cases, exception to subsidiary principle is allowed (7-2 KCCR 851, 865, 91Hun-Ma80, December 28, 1995). The instant case falls into the exception because the Instant Provision prescribes only prohibition without penalty and thus cannot be challenged at an appellate court level.

(3)Political questions are not legitimate complaints and should be avoided because President and The National Assembly's decisions are to be respected (16-1 KCCR 601, 2003Hun-Ma814, April 29, 2004). However, they are reviewed if related to basic rights of citizens (8-1 KCCR 111, 93Hun-Ma186, February 29, 1996). The instant case is not a political question because it involves respondent's determination on whether complainant's act violates the Instant Provision. The respondent's determination can be construed neither as the high level of political act similar to the act of a state nor something to be highly respected under the principle of separation of powers.

D. Sub-conclusion

Therefore, justiciability of this case is thus satisfied. However, Justice Lee, Dong-heub wrote a separate dissenting opinion based on the analysis that Notices do not fall into the exercise of governmental power and complainant does not have a legal standing. Justice Kim Jong-dae also dissented based on the absence of the exercise of governmental power. Theses opinions are stated in the Section 7&8.

4. Issue of Unconstitutionality of the Instant Provision

A. General

(1) History of the Instant Provision

(intentionally omitted)

(2) Restricted basic rights

The law in the instant case prevents President from making unjustifiable influence to the result of an election. The issues here are: 1) whether the Instant Provision restricts complainant's freedom of political expression; and 2) whether it infringes upon the right to equality of President by discriminating him from other political masters who do not owe the same duty. The freedom of act for political party will not be reviewed because it is not restricted during the campaign (POEA, Article 58 Section 1 Item 4) and other acts are included in the review the freedom of political expression. The freedom of political campaign will not be reviewed because it is protected under the Constitution 21. (7-1 KCCR 499, 507, 92Hun-Ba29, April 20, 1995; See 19-1 KCCR 1, 2004Hun-Ba82, January 17, 2007).

B. Interpretation of the Instant Provision

(1) Interpretation of the Instant Provision

(A) There is no precedent of ordinary courts on the interpretation of the Instant Provision. Therefore, in order to review the constitutionality of the Instant Provision, this Court has no other options than judging the constitutionality based on its own interpretation of the Instant Provision within the needed scope.

(B) The person in the Instant Provision is the 'public official and others who have to perform the duty of impartiality'. 'Public officials' include all the public officials who should protect equal rights for political parties during elections. In fact, all the public officials are in the status to be able to improperly influence elections and therefore

public officials in the Instant Provision are all the public officials of central government and local governments including those in political offices such as President, Prime Minister, National Council Members, Provincial Governors, Chairman of Gu and other heads of local governments. Especially, President and the heads of local governments have more important duty of impartiality because they, through their positions, may more likely to influence on political opinions of people and manipulate competitive relations among political parties. (16-1 KCCR 609, 636, 2004Hun-Na1, May 14, 2004). However, the members of The National Assembly and Local Assemblies are exempt from this duty because they enjoy the freedom of political activity warranted by law (Public Officials Act, Article 3 Section 3 and Article 65, Presidential Decree on the Scope of Public Officials defined in 'Public Officials Act, Article 3 Section 3', Article 2 Section 4) and may do political campaign without duty of impartiality (Public Officials Act, Article 60 Section 1 Item 4, Political Party Act, Article22 Section 1 Item 1 Proviso). (See 16-1 KCCR 609, 636, 2004Hun-Na1, May 14, 2004)

There arises a conflict between the Instant Provision which mandates President's duty of impartiality and the Public Officials Act which allows President's political activity (Public Officials Act, Article 3 Section 3 and Article 65, Presidential Decree on the Scope of Public Officials defined in 'Public Officials Act, Article 3 Section 3', Article 2). Public Officials Act is to set a principle for personnel administration of public officials which prohibits political activities of public officials in principle but permits those of President and other political masters due to the nature of their positions. Meanwhile, POEA is to set the fairness of election. It restricts a certain amount of election-related political activities of political masters and prohibits any act to influence elections in an improper manner (POEA, Article 137 through 145). Finally, POEA will be applied preemptively by being a special law regulating elections, while Public Officials Act is a general law.

(C) Act in the Instant Provision is 'act which influences elections'. This act should be interpreted to be any act influencing numbers of votes in elections by the way that is not in accordance with public officials' duty as public servant bestowed political power and weights.

(16-1 KCCR 609, 639, 2004Hun-Na1, May 14, 2004).

(2) Whether the Instant Provision is a declaratory recommendation in its nature.

Given no penalty provision, respondent argues that the Instant Provision is merely a declaratory warning. However, the Instant Provision enumerates the acts of violation and further prescribes that violators of the Instant Provision can be penalized by disciplinary act (Public Officials Act, Article 78 Section 1 Item 2). In case of violation, ordinary public officials may be disciplined while President may be impeached. Therefore, it is unlikely that the Instant Provision is merely a declaratory warning without legal effects.

C. Whether this Instant Provision violates the rule of clarity

(1)Rule of clarity is the constitutional principle that any law restricting basic rights should be clear and distinct. If a law is not clear, it will allow government's arbitrary interpretation of law by not guaranteeing legal integrity and predictability. Given the general and normative nature of legal texts, however, the law is not against the rule of clarity if a law can be clearly interpreted by judge's subsidiary judgment and its interpretation is not subjective. (10-1 KCCR 341-342, 95Hun-Ka16, April 30, 1998; See17-2 KCCR 712, 721, 2004Hun-Ba45, December 22, 2005).

When it comes to the restriction of the freedom of expression, the rule of clarity applies in a strict way. If what is restricted is not clear, individuals with basic rights are likely to restrict their freedom of expression voluntarily as they are not able to verity whether theirexpression is within the restriction. (14-1 KCCR 616, 628, 99Hun-Ma480, June 27, 2002). Since complainant claims that his right tothe freedom of expression was violated by the Instant Provision, this court will review whether the Instant Provision violated the rule of clarity. However, the level of scrutiny will be modified because the Instant Provision is without penalty provision and applies only to public officials.

(2)This Instant Provision prescribes that "public officials and others with the duty of political impartiality shall neither make improper influences to elections nor commit any act which may influence the result of elections." Considering the legislative intent and the relations with other provisions, public official in the Instant Provision includes all the occupational public officials as well as politically elected officials such as President and yet excludes other elected officials such as the members of The National Assembly and local assemblies.

Acts in the Instant Provision may be too broad when it refers to acts which make improper influences to elections and may influence the result of elections. However, the legislative intent implies the reasonable interpretation of the provision, that is, any act influencing number of votes in elections by the way not in accordance with public official's duty as public servant bestowed their political power and weights (See 16-1 KCCR 609, 639, 2004Hun-Na1, May 14, 2004. This court decided that 'in order to make influences to elections' of POEA, Article 93 Section 1 is against the rule of clarity on August 30, 2001 in 99Hun-Ba92). The Instant Provision applies only to public officials who should understand and execute the law. Especially, President, as the head of the Executive, is in the position to understand and anticipates the contents of the Instant Provision with the assistance of supervising administrative departments. For this reason, the level of scrutiny for the rule of clarity is lowered in case of President (See 19-2 KCCR 12, 2006Hun-Ka9, July 26, 2007).

Based on this analysis, we find the Instant Provision is not against the rule of clarity.

D. Whether the Instant Provision infringes upon the right to the freedom of expression

(1) In general

(A) Freedom of political expression

Freedom of expression is the tool to reveal individual values. With this freedom, individuals shape their characters by the way of inter-communications and achieve self-realization. Meanwhile, it is the

tool to materialize social value. With this tool, individuals participate in political decision making process and thus actualizes self governance (See 11-1 KCCR 768, 775, 97Hun-Ma265, June24, 1999). In principle, therefore, the freedom of expression should be warranted as far as it is not in violation of fair elections. In case of restriction of this freedom, the rule against excessive restriction should still be applied pursuant the Constitution, Article 37 Section 2 (6-2 KCCR 15, 93Hun-Ka4, July 29, 1994; See 15-1 KCCR 7, 17, 2001Hun-Ka4, January 30, 2003).

(B) President as a public official

President is the head of the Executive (the Constitution, Article 66 Section 4) and should comply with the Public Official Act. (Public Official Act, Article 2 Section 3 Item 1 Sub-item Ka). A public official owes the constitutional duty of political impartiality toward elections under the Constitution, Article 47 Section 1, Article 67 Section 1, Article 116 Section 1 (16-1 KCCR 609, 634-635, 2004Hun-Na1, May 14, 2004).

(C) President as a politician

Modern democracy has changed from representative democracy to party politics democracy. Political party connects a nation with the people by directing and consolidating various political opinions of the people. Through this process, political party shapes political ideas and influences state policies. In details, political party nominates candidates for different elections; produce political ideas to influence government's major policies through elections and legislative activities; and takes a major role in leading mass movement (15-2(B) KCCR 17, 32, 2002Hun-Ra1, October 30, 2003). Since political party plays a major role in election process as well as political process, the Constitution guarantees the freedom to establish political party and the multi-party system (the Constitution, Article 8 Sections 1 Section 2). Under this party politics democracy, a Presidential Candidate is elected as President after being nominated by a party and winning an election. President, after being elected and taking office, may still remain as

the party member and engage in political activities (Public Official Act, Article 3 Section 3, Article 65; 'Regulations on the Scope of Public Official under Public Official Act Article 3 Section 3, Article 2 Section 1; Political Parties Act, Article 22 Section 1 Item 1 Proviso). Therefore, President, with the status of 'political and constitutional institution' or 'politician,' is likely to be closely related to the policy and interests of a certain political group.

(D) President's duty of impartiality

There is a possibility that President's freedom of political activity conflicts with his or her duty of impartiality toward elections. Under the current representative democracy system, election is the essential part to materialize the people's democracy because it enables the people to decide the composition of governmental organization and bestow democratic legitimacy to elected officials. Meanwhile, the duty of fair election lies with President, an administering head of state affairs because President is a constitutional body who not only executes his political party's policy but also owes the duty to promote public goods as the head of the Executive. President has the duty to serve all the people in addition to his or her supporters and thus unify different political groups in a society (16-1 KCCR 609, 637, 2004Hun-Na1, May 14, 2004). Although NEC, as a separate constitutional organ, deals with election administration (the Constitution, Article 114 Section 1), the impartiality of President, as the head of the Executive, is very important because the actual election administration cannot be successful without supports and cooperation of public officials in the Executive. Further, President's interference with election is highly likely to threat fair elections because public officials tend to consider the political orientation of President who supervises the personnel management although their employments are guaranteed under the law. In conclusion, when President's freedom of political activities conflicts with the duty of impartiality, the duty prevails.

(2) Whether the rule against excessive restrictions is violated

(A) Legitimacy of the legislative purpose

The duty of impartiality of public officials is essential to warrant fair election, free election and equal opportunity. The principle of free election guarantees that voters be free from the improper influence of the state and make their decisions and political opinions through free and open process. Therefore, a governmental body owes 'duty of impartiality' which prohibits either supporting or opposing specific political parties or candidates.

Also, the duty of impartiality of public officials in election is constitutional commitment in terms of equal opportunity among political parties. Political party's equal opportunity is the constitutional principal pursuant to the Constitution, Article 8 Section 1 and Article 11 and is further detailed at the Constitution, Article 116 Section 1 which prescribes that 'election campaign …… should guarantee equal opportunities'. The principle of political party's equal opportunity prohibits any act which makes either positive or negative impacts to specific political party and candidate (16-1 KCCR 609, 635, 2004Hun-Na1, May 14, 2004). The purpose of POEA is to contribute to the development of democratic politics by making sure that an election as prescribed by the Constitution and the Local Autonomy Act is held fairly in accordance with the free will of the people and democratic procedures and by preventing any malpractice related to the election (POEA, Article 1). This Instant Provision is aimed to promote people's democracy through fair elections by imposing the political duty of impartiality on public officials and therefore has the legitimate legislative objective.

(B) Appropriateness of means

There could be an argument that fair election may be promoted by President's political opinion which satisfies people's rights to know because President may become a member of a political party and engage in political activities.

However, the reason we guarantee fair election is for the goal of protecting the principle of free election, in which, voters make their political opinions free from the governmental and any other influences.

As stated above, the interference of President, as the head of the Executive, is highly likely to endanger the principle of free election and, for this reason, the Instant Provision is found to be a justifiable mean for the legislative objective of 'guaranteeing fair elections'.

(C) Least restrictive means

1) The necessity of the Instant Provision

POEA has several provisions to regulate public officials' campaign work.

Article 85 (prohibition of campaign work by using one's status) and Article 86(prohibition of acts influencing elections) enumerate what are prohibited. Article 255 prescribes penalty and Articles 232, 237, 238, 247 & 249 regulate aggravated penalty. While we already have above mentioned penalty provisions, the enactment of the Instant Provision raises the issue of whether it violates the principle of least restrictive means.

Despite the Legislature revised Election Act several times in order to regulate fraudulent elections, public officials' interference with elections were not eradicated. Under the circumstances, the Legislature made the former 'Public Officials Election and Prevention of Election Corruption Act of 1994' and enacted the Instant Provision within it. Under this legislative history, POEA does not violate the principle of minimizing damages when it enacts the Instant Provision in addition to Articles 85, 86 & 255 and above cited aggravated penalty provision for public officials.

2) Scope of restrictions

This Instant Provision restricts President's freedom of expression when President makes improper influence to the result of election during a campaign season. Although President expresses his or her own political opinions as a party member, he or she should not express political opinions in line of political duty as the head of the Executive and therefore President is subject to the law regulating the duty of political impartiality (16-1 KCCR 609, 638, 2004Hun-Na1,

May14, 2004). The Instant Provision does not regulate President's private rights. Given the publicity and the nature of its position, however, President lies in an unclear distinction between his/her rights as private individual and his/her acts within his job duty (16-1 KCCR 609, 633, 638, 2004Hun-Na1, May 14, 2004). This unclear distinction limits the scope of President's private rights.

Complainant argues that Notices are unreasonable because they take away President's opportunity to respond to the opposition party's criticism as President is required to keep the duty of impartiality in 'supervising elections'. We do not agree because President has the duty of 'the supervision of fair elections' as well as 'duty of impartiality to elections' in order to ensure 'fair elections'. We believe he may respond to the opposition party's criticisms through his administration and political party.

3) Modification of sanction

The Instant Provision does not have penalty provision leading for criminal prosecution. In case of violation by President, he or she will not be subject to other penalties except to be impeached.

4) The rule of the least restrictive means

The rule of the least restrictive means is not violated because President's rights under the Instant Provision are restricted with the limited condition of timing, method and areas in a non-excessive level of penalty.

(D) Balance between interests

Public interest sought by the Instant Provision is 'the fairness of election' and the damages incurred on public officials are 'the restriction of the freedom of political expression'. As we discussed above, 'the fairness of election' warranted by President's impartiality is greater and more important than a limited amount of 'the restriction of the freedom of expression' imposed to President. Therefore, the Instant Provision satisfies the balancing test.

(E) Sub-conclusion

We find that the Instant Provision does not infringe upon complainant's freedom of political expression when it does not violate the rule against the excessive restriction.

E. Whether the principle of equality is violated

(1)There is discrimination against President because the members of The National Assembly and Local Assemblies are the same elected officials as President and yet not subject to the Instant Provision.

(2)The principle of equality under the Constitution, Article 11 Section 1 does not mean formal equality without any sort of discrimination. It rather means non-allowance of discrimination stemming from unreasonable contingencies in the application of law and law making process, therefore discrimination without reasonable basis violates the principle of equality (6-1 KCCR 72, 75 92Hun-Ba43, February 24, 1994; 10-2 KCCR 484, 504 98Hun-Ka7 et al., September 30, 1998; See 13-2 KCCR 714, 726 99Hun-Ma494 November 29, 2001). The standard of review for the violation of the principle of equality varies: 1) strict scrutiny applies to the case where the Constitution textually requires equality and where discriminatory action seriously restricts the basic rights; and 2) moderate scrutiny applies to the other cases (See 11-2 KCCR 770, 787, 98Hun-Ma363, December 23, 1999). The Instant Provision applies to the cases where the Constitution does not textually require equality. Further, absent penalty provision, the Instant Provision is unlikely to infringe upon one's basic rights seriously. In the instant case, therefore, the standard of review will be the rule against arbitrariness which is a moderate scrutiny.

(3)President has the full responsibility for fair election as the head of the Executive. President's interference with election is highly likely to affect the fairness of election because public officials are not free from the political orientation of President who has the power of personnel administration. On the other hand, the members of The

National Assembly and Local Assemblies are the part of the Legislature with less influence to election because they do not have public officials under their supervisions. Further, while being part of the National Assembly, the members of the National Assembly may become candidates for election as party members and actively participate in advertisement campaign for policies under the principle of multi-party and free election. In this regard, it is not appropriate to impose the duty of impartiality on the members of the National Assembly and Local Assemblies.

(4)In conclusion, it is reasonable discrimination and not against the principle of equality for the members of the National Assembly and Local Assemblies to be immune from the Instant Provision.

F. Sub-conclusion

We conclude that the Instant Provision is not unconstitutional and find no merit to complainant's claim that Notices infringe upon complainant's basic rights by being unconstitutional.

5. Whether Notices are Unconstitutional

A. Whether the principle of clarity is violated

(1)Under the Constitutional Court Act, Article 68 Section 1, anybody whose basic right is violated by the exercise or non-exercise of governmental power may file a constitutional complaint. Complainant argues that Notices are against the principle of clarity because they do not point out what part of complainant's remarks violated the Instant Provision. We understand that complainant asserts that unclear Notices violate his freedom of political expression.

(2)The 1st Notice points out President's remarks on June 2, 2007 at EFPG meeting on the wrongfulness of the opposition party's gaining political power and the criticism against the party's candidate. The 2nd Notice deals with President's remarks made at Wonkwang University on June 8, at the anniversary of the June 10th Democracy on June

10th Movement and during the interview with Hankyoreh Newspaper on June 13. The contents of the remarks are same with those on June 2nd. These Notices are clear enough to advise Complainant of the substance of 'the acts against Election Act'.

(3) We conclude that Notices are clear and complainant's assertion is without merit.

B. Whether the principle of due process is violated

(1)The Constitution, Article 12 Section 1 prescribes that " …… no person shall be punished, placed under preventive restrictions or subject to involuntary labor except as provided by Act and through lawful procedures." This principle applies not only to criminal procedure but all the governmental actions (4 KCCR 853, 876-877, 92Hun-Ka8, December 24, 1992; 10-1 KCCR 610, 618, 96Hun-Ba4, May28, 1998; 19-1 KCCR 482, 2006Hun-Ba10, April 26, 2007). One of important procedures under this principle of due process is to give a proper notice to a party and grant a chance to submit the party's opinion and briefs (6-2 KCCR 1, 11, 93Hun-Ka3, July 29, 1994; 8-1 KCCR 1, 16-17, 95Hun-Ka5, January 25, 1996; 14-1 KCCR 616, 634, 99Hun-Ma480, June 27, 2002). It is difficult to say what extent this procedural due process should be satisfied to. Therefore, we review this issue by considering different factors such as the nature of the regulation, private interest of parties, promotion of value, efficiency of governmental operation, costs of the procedure, the opportunity for appeal and others (15-2(A) KCCR 1, 18, 2001Hun-Ka25, July 28, 2003; 17-2 KCCR 785, 796, 2005Hun-Ma19, December 22, 2005; 18-1(B) KCCR 58, 67, 2004Hun-Ba12, May 25, 2006).

(2)An administrative decision passed by NEC is not subject to regulation on administrative procedure (Administrative Procedure, Article 3 Section 2 Item 4) due to the principle of the separation of power and the reasonableness of NEC's voting procedure. Given the special nature of campaign work, NEC should make prompt decisions on the issues of the violation of election law. Further, absent ultimate legal effects, NEC does not necessarily have to provide complainant

with the chance for response.

(3)We conclude that NEC did not violate complainant's basic rights when it did not give complainant the chance for response before issuing Notices.

C. Whether the Instant Provision is misinterpreted

(1)In a strict sense, Constitutional Court does not review the misinterpretation and misapplication of law made by administrative organs. However, when an administrative organ made decisions against an individual after ignoring the effects of the Constitution or the regulations on basic rights and thus violates one's basic rights without reflection of the constitutional spirit, Constitutional Court reviews the issues on the misinterpretation and misapplication of law (See 15-1 KCCR 223, 237-238, 2002Hun-Ma106, February 27, 2003).

(2)Complainant claims that he is not categorized as a public official and, therefore, Notices are issued based on the wrong categorization. We disagree because President is a public official as we stated above.

(3) Complainant argues that his speeches do not fall into 'exerting improper influence to elections and acting in a manner which may influence the results of elections' and, thus, NEC chairperson misinterpreted and misapplied this law when he issued Notices. We consider the contents of President's remarks, timing, frequency and context in order to decide whether President may substantially affect the result of elections through speeches not in conformity with his status which mandates President to exercises his/her political power and influences only for people (16-1 KCCR 609, 639, 2004Hun-Na1, May 14, 2004).

(A) Contents of remarks

Appendix 3 (intentionally omitted)

(B) Timing

President's remarks at EFPG was made on June 2, 2007 (Saturday); at Wonkwang University on June 8 (Friday); at the Anniversary of the June 10th Democracy on June 10th Movement on June 10 (Sunday); and during the interview with Hankyoreh Newspaper on June 13 (Wednesday) with short intervals. These remarks were made six months before the Presidential Election Day (December 19, 2007). Although campaign work did not start during this time, Grand National Party has begun to receive applications for the party's primary. The names of candidates for the primary election with their general policies were already known to the public. According to "POEA," prospective candidates may register from 240 days before Presidential Election day (Article 60-2 Section 1 Item 1) with a limited capacity of campaign work allowed (Article 60-3) and a party may establish campaign office from 204 days (Article 61-2 Section 1 Item 1). Given the importance of Presidential Elections, however, parties and candidates prepare campaign work far before legally permitted campaign season and, consequently, media covers them with great importance. Therefore, we find that the timing of complainant's remarks is close to the timing of Presidential Election.

(C) The size and nature of the meeting

1) EFPG is a national civil organization established on April 2007 for the purpose of objective evaluation of Participatory Government (President Roh Moo-hyun Administration). Complainant was invited to speak at the meeting of EFPG with hundreds of participants held in Seoul, Yangje-Dong on June 2, 2007 and his speech was lively webcasted by OhMyNews. Complainant also spoke in the presence of school officials and faculty members at Wonkwang University on June 8, 2007 after receiving a honorary doctorate of political science. Further, complainant Gave congratulatory remarks at an official Anniversary of June Tenth Democracy Movement with the participants of three thousand public officials and citizens which was broadcasted by Korean Broadcasting Company. The interview with Hankyoreh Newspaper was done at the reception room of President's Office in the presence of staffs from the newspaper and President's Office on June 13, 2007.

2) The Anniversary of June Tenth Democracy Movement and the interview with Hankyoreh Newspaper were conducted during his working hours as President with media exposure and, therefore, they were found to be done in line of work.

3) The EFPG meeting and the honorary doctorate ceremony at Wonkwang University were conducted with President's participation as a private figure. Given President's publicity and the importance, many people participated in both events. The EFPG meeting was webcasted and the part of his speeches at Wonkwang University was also broadcasted later. Through these events, complainant purported to impose his political agendas which were the evaluation of his administration's establishment and the decentralization of power. Therefore, we cannot find those events are not related to complainant's job duties as President. After all, those events remain in the area where the public figure and the private figure of President collides.

(D) Evaluation of the remarks

As we discussed above, complainant continuously and repeatedly criticized the candidates of the opposing party and their policies. Further, complainant made remarks that he would support the candidate from his party during the interview with Hankyoreh Newspaper. These remarks of complainant may possibly give substantial influences to the fairness of election as complainant used his political power in a manner that is not in accordance with his duty to serve all the people.

(E) Short conclusion

We do not believe that respondent misinterpreted and misapplied the Instant Provision because the remarks of complainant has improper influence on the number of votes to be obtained in the election through inappropriate exercise of his political power. For this reason, complainant is without merit when he argues that his basic rights were violated by Notices.

D. Sub-conclusion

We find that Notices are not as wrongful exercise of governmental power and do not infringe upon complainant's basic rights.

6. Conclusion

The Instant Provision is not unconstitutional and Notices in the instant case do not infringe upon complainant's basic rights. For these reasons, we deny this constitutional complaint.

7. Dissenting Opinion by Justice Kim Jong-dae (Dismissal)

I believe that Notices do not constitute the exercise of governmental power which may violate one's basic rights.

A. Definition of exercise of governmental power

To file a constitutional complaint based on the Constitutional Court Act, Article 68 Section 1, there should be the possibility of infringement of one's basic rights by exercise or non-exercise of governmental power. The 'exercise of governmental power,' as the subject matter of a constitutional complaint, should make direct legal effects to citizen's rights and duties and should be able to change complainant's legal status in a negative manner (See 6-2 KCCR 249, 264 92Hun-Ma174 August 31, 1994). Complainant cannot argue for the infringement of basic rights when the exercise of governmental power does not create legal effects by not imposing any legal burden to them. Therefore, interactions between governmental organs, administrative notice and delivery of opinions do not constitute governmental power because they lack legally binding power and outside effects.

There is an issue of whether Notices in the instant case are the exercise of governmental power.

B. Subject person of Notices

Notices are issued twice. The outline of Notices is composed of request for no further violation such as complainant's remarks made in EFPG by confirming the remarks violate Article 9 of POEA, under the title of 'request for compliance with the Presidential duty of impartiality'. Before issuing Notices, NEC reviewed whether complainant's remarks violated "POEA" by holding a full-member meeting. After the meeting, NEC delivered the Commission's opinion under the name of NEC chairperson. Considering these procedures, we find it was NEC who issued Notices even if they were delivered under the name of NEC chairperson. Obviously, respondent makes it clear that Notices were made from NEC's decision and they were NEC's notices.

C. Legal basis of Notices

(1)Under the Constitution, Article 37 Section 2, the freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Therefore, we need to find the legal basis of Notices because any measures to restrict citizen's basic rights should be either derived from or based on the law. Respondent argues that Notices are mainly derived from NEC Act, Article 14 Section 2 and, alternatively, even without this Act, Notices may be made based on unique power of NEC which deals with fair election under the Constitution and NEC Act.

(2)We will observe whether NEC Act, Article 14 Section 2 can be the basis of Notices. In order to acknowledge the said provision as the basis of Notices, NEC should be the subject person of measure enumerated in the said provision and the contents of Notices should fall into the type prescribed in the said provision. The NEC Act, Article 14 Section 2 limits the initiator of NEC's action within "commission members' or 'staffs' and classifies different notices into 'stop', 'warning', 'correction' and 'criminal complaint'. The Legislature enacted this law with the knowledge of the different statuses and roles between 'commission members'/'staffs' and Commission. It becomes clear if we observe that the action can be initiated by Commission

instead of 'staff' or 'commission members' when the Legislature enacted "POEA," Article 10 Section 3. For this reason, the subject who can initiate any action in NEC Act, Article 14 Section 2 should be reasonably limited to 'commission members' or 'staffs'.

Next, in case of violation of NEC Act, Article 14 Section 2, NEC may issue various corrective measures such as 'stop' 'warning' 'correction' followed by prosecutorial measures strictly prescribed by law. Since NEC's measures restrict one's basic rights, they should be made strictly based on the law.

Even when we observe NEC's customary practice, we clearly find that NEC use the substantially similar terms with those of Article 14 Section 2 such as 'warning', 'stop order', 'compliance order', 'criminal prosecution' and 'criminal punishment'.

In conclusion, Notices in this instant case do not fall into the measure prescribed in NEC Act, Article 14 Section 2 and therefore cannot refer to the Instant Provision as a legal basis.

(3)Next, we will review whether NEC may issue Notices based on its unique power. NEC is a constitutional organ established by the Constitution. This status is the result of our nation's constitutional determination with the recognition of the importance of fair election for the development of democracy. Under this tradition, NEC Act and Public Election Act enacted numerous legal bases for NEC's corrective measures to ensure fair election management. Absent those legal bases, however, NEC may issue such measures requesting cooperation and compliance to any organizations and individuals in anticipation of possible violation. This power is based on the constitutionally granted status of the manager of fair election which is the essential value of democracy.

(4)For these reasons, it is reasonably concluded that Notices in the instant case were not based on NEC Act, Article 14 Section 2 but rather based on NEC's inherent status and power granted by the Constitution, NEC Act and Public Official Election Act for the purpose of managing fair election.

D. Legal nature of Notices in the instant case

(1)Notices in the instant case is best characterized as a mere opinion or a request for cooperation of an administrative body because NEC simply delivered a request for compliance with complainant's duty of impartiality and re-delivered the same request after NEC decided complainant's actions violated "POEA". Therefore, Notices in the instant case bear no relevance with the violation of complainant's basic rights because the Article 9 of POEA, regarded as pertinent provision of Notices in the instant case by respondent, prescribes no legal sanction against violation.

(2)Therefore, as stated in the NEC Act, Article 14 Section 2, NEC may not impose any other restrictive measure including criminal prosecution even if complainant does not comply with the Notices. Due to the nature of Notices, therefore, respondent is required to neither hear complainant's response before they issue Notices nor state the legal basis for Notices. Although complainant's basic rights might have shrunk, it resulted not from legal effects but from actual effects or political action.

E. Conclusion

Notices are measure made by NEC to request reservation of unnecessary remarks to ensure fair election. Notices neither imposes any duty on complainant nor creates any legal effects. Instead, they are corrective measures in anticipation of cooperation on complainant's side and thus not constitute the exercise of governmental power which may possibly violate complainant's basic rights. For this reason, this constitutional complaint should be dismissed.

8. Justice Lee Dong-heub's Dissenting Opinion (Dismissal)

I dissent to the majority opinion because I find neither the exercise of governmental power in the instant Notices nor the justiciability on complainant's legal standing.

A. Whether Notices constitute the exercise of governmental power

(1) In general

According to the Constitutional Court Act, Article 68 Section 1, 'the exercise of the governmental power should have legal effects to citizen's basic rights and duty and consequently cause damages to complainant in his/her legal relation and status (6-2 KCCR 249, 264, 92Hun-Ma174, August 31, 1994). The followings lack legal effects and therefore do not constitute the exercise governmental power: cooperation request by administration, opinion, recommendation, action without forcibility, notice of the interpretation of law, notice of induced standard, confirmation notice without violation of basic rights, reply to legal question, and interaction between governmental entities (Constitutional Court Official Gazette, 40, 940, 941, 99 Hun-Ma625, November 30, 1999; 13-1 KCCR 752, 757-8, 2000Hun-Ma37, March 21, 2001; 15-1 KCCR 223, 226, 2002Hun-Ma106, February 27, 2003).

(2) The nature and legal character of Notices

(A) To determine whether a government action constitutes the exercise of governmental power, we need to review the format and the contents of the government action and relevant law. (13-2 KCCR 353, 359, 2000Hun-Ma159, September 27, 2001). Notices in the instant case use such non-forcible and opinion stating terms as 'request' and 'demand' 'regret' 'attention' 'restrain' 'consideration' in its title and contents. In a consistent manner, the contents of Notices are composed of the notice of legal value-judgment on the current situation and cooperation request to prevent further dispute. After all, Notices are NEC's cooperation request for fair election from NEC's typical business practice and this is claimed by respondent as well.

Under the customary practice, NEC branch offices issue 'cooperation request' (See, 'Handbook of investigation for crimes on election and politics funding' edited by NEC and Respondent's Brief [attached 5][attached 6][attached 7]), which is distinct from 'warning' set forth in article 14-2 of NEC Act and less forcible than the 'warning'. These practice do not use the 'warning' 'correction order' articulated in the NEC Act, but use the term 'cooperation request' or 'compliance request' as those in Notices in the instant case. Further, they do not

mention the forcible or disciplinary action which NEC may take but rather ask for compliance to the law.

NEC branch offices have the status and responsibility for managing and guiding fair election pursuant to the Constitution, Article 114 (NEC), NEC Act, Article 1 (Objective), Article 3 (NEC Responsibility) and Article 114 (Election System). Absent specific legal provisions, NEC issues its opinions and cooperation requests for compliance with election law to individuals and government entities. Notices in the instant case are those of cooperation and compliance request made by NEC. Considering the format, contents, relevant law and respondent's business practice, we find Notices in the instant case to be NEC's cooperation request or compliance request for fair election. With respect to this, majority opinion found Notices in the instant case was based on the Article 14-2 of NEC Act by constituting 'warning' among the above mentioned categories, I disagree. There was no mention about the pertinent provision when Notices in the instant case were issued. Further, respondent asserts that Notices in the instant case do not fall into the 'warning' set forth in Article 14-2 of NEC Act. The subject person to issue the 'warning' set forth in Article 14-2 of NEC Act should be members or officials of NEC. The subject person of Notices in the instant case is found to be NEC. It is found that Chairperson of NEC simply notified complainant, when I consider the format, contents and process of Notices in the instant case.

(B) Despite their interpretation of election law and the specific legal situation, Notices in the instant case does not make any legal effects to complainant. Further, Notices are without legal provisions to base legal effects and without any sign to imply the exercise of governmental power. It cannot be said that Notices in the instant case implies direct and concrete legal disadvantage because it does not change affirmatively the present legal relationship of the recipient or impose special burden or duty on the recipient. In addition, it cannot be seen that Notices in the instant case give rise to the insecurity of legal status or factual change because it does not have the nature of de-facto exercise of power which asks immediate correction or termination of the violation. There is no law stipulates legal effect and any evidence to prove the establishing of exercise of governmental

power.

One can argue that Notices are the exercise of governmental power because complainant may be impeached in case of non-compliance. The cause of action for impeachment is 'the violation of the Constitution and the law during the work' and 'the violation is gross' as prescribed in the Constitution, Article 65 (16-1 KCCR 654-8,2004Hun-Na1, May 14, 2004). In case of complainant's non-compliance and subsequent possible impeachment action, we need to review the issue of 'the violation of the Instant Provision' instead of 'the technical non-compliance of Notices'. For this reason, the violation of "POEA" Article 9 Section 1 was the issue instead of non-compliance with NEC's notice in 2004Hun-Na1 ("the President's Impeachment case"). With respect to this issue, the majority opinion decides that Notices in the instant case may trigger the cause of action for impeachment by legally confirming complainant's violation and thus may cause negative effects to complainant's legal status. However, the 'legal confirmation' referred above by the majority opinion has the connotation of political and practical weigh not legal basis. Although people can regard an administrative agency's interpretation of statute as an authoritative interpretation, this interpretation cannot be the agency's statement with legal connotation. Further, the possibility of impeachment does not depend on the existence of Notices in the instant case. The causes of action for impeachment are various without any fixed formality. Since the impeachment action is politically motivated in some cases, I cannot find an action to be the exercise of governmental power only because it triggered the impeachment.

(C) The majority opinion decides that Notices constitute the exercise of governmental power because they are warnings pursuant to NEC Act, Article 14 Section 2 and may become the basis for a criminal investigation and a prosecution. However, Notices in the instant case are not based on NEC Act, Article 14 Section 2. They are compliance requests or opinions without forcibility based on NEC's inherent power. Absent penalty provision, I cannot accept the hypothetical presumption of criminal investigation or prosecution resulting from the violation of Notices. Violators of Notices will be penalized pursuant to the provision of election law not pursuant to NEC Act, Article 14

Section 2. In case of criminal prosecution, authorities should Gather the facts and apply the law without reliance to NEC's measures. Further, respondent should file a criminal complaint for the violation of election law not for non-compliance with notices. Therefore, the fact that respondent may file a criminal complaint does not yield to the assertion that Notices in the instant case constitutes the exercise of governmental power.

(D) Now I consider the fact that Notices are issued to 'the President' 'Head Secretary of the President' under the title of 'request', 're-request', with the contents that President's remarks violate the duty of impartiality to election under POEA and the future cooperation is requested. I further consider the purpose and process of Notices in the instant case. Upon this consideration, I find, Notices in the instant case are issued to the institution of the Presidency, not an ordinary citizen. In principle, any action toward governmental entities and administrative organs do not bear direct relations to the basic rights of citizens and, for this reason, they are unlikely to be the exercise of governmental power (5-2 KCCR 510, 517-8, 92Hun-Ma293, November 25, 1993; 6-1 KCCR 409, 413, 91Hun-Ma55, April 28, 1994; 6-2 KCCR 249, 265, 92Hun-Ma174, August 31, 1994).

As the majority opinion found, the chilling effects afflicted to complainant result from Notices' practical and political effects not from legal effects. Every Governmental body has a duty to observe law and President has the same duty. Legal effect from the exercise of governmental power is the concept presupposed by a certain amount of limitation in individual's private life. It does not consider possible political effect which is created by the fact that the individual is President. The fact that the recipient of Notices in the instant case is President rather weakens the characteristic of governmental power.

(E) I disagree with the majority opinion when they find that Notices in the instant case are NEC's decision on President's violation of law which cannot be challenged in a court and therefore they are final legal findings with the restriction of basic rights. First of all, NEC is a constitutional organ in charge of fair management of elections and national referenda and deals with administrative affairs concerning

political parties (Article 114 Section 1 of the Constitution). The term of its members shall be guaranteed (Article 114 Section 3 of the Constitution) equally appointed by the President, National Assembly, and Supreme Court (Article 114 Section 2 of the Constitution). However, NEC is not the Judiciary or quasi-Judiciary which imposes sanction and restriction on violation of election law. Although NEC's power is an independent constitutional organ with broad and important power in supervising election and party administration, it is not able to render 'authoritative' interpretation of law when it issues notices and decision. Further, an administrative action cannot be found to be a final decision only because it creates practical and psychological restriction while it cannot be challenged in a court because it is without the provision on legal effects. Current systems of constitutional adjudication or public law strictly distinguish legal effect from factual, indirect or political effect.

(F) The alleged damages incurred on complainant are not caused by Notices but by the Instant Provision. Notices simply interpreted the Instant Provision and requested compliance with the provision. For this reason, if we review this petition on merits, we need to review the constitutionality of the Instant Provision, not Notices; this proves that Notices in the instant case is without legal effects.

Considering the majority opinion about the review on merits, it becomes clearer. Majority opinion examined whether the rule of clarity was violated, due process doctrine was violated and NEC member's interpretation was appropriate during the review on the possible violation of the Constitution by Instant Provision and the Notices.

With respect to the rule of clarity, I have a doubt if the principle applies to administrative measures. Rule of clarity, as one of symbols of the principles of constitutional State, should be observed for all legislation restricting basic rights, because if the governed could not know what is prohibited from the languages of regulations, then legal stability or predictability would not be secured by causing the arbitrary exercise of executive power (10-1 KCCR 327, 95Hun-Ka16, April 30, 1998). The issue of clarity on administrative measures is not something to be discussed from the perspective of the rule of clarity in the Constitution. Rather, it is the issue related to administrative law

in deciding whether administrative measures can be annulled.

With respect to the issue of due process derived from the unavailability of complainant's response, there is no substantial constitutional point in the phase of Notices where the disadvantage of complainant was not materialized. I believe this issue is related to the issue of the unconstitutional interpretation and the misapplication of the Instant Provision. Since majority opinion mainly examined whether NEC failed to interpret the Instant Provision, I will explain it as below.

Even if administrative agency misinterpreted a law which resulted in the violation of citizen's basic rights, those administrative actions are not always subject to constitutional review. If misinterpretation of administrative agency should be subject of constitutional complaint, the Constitutional Court would review the rationality about every interpretation and application of law because nowadays lots of statutes are restrictive and the misinterpretation of restrictive legislation necessarily would entail the infringement of complainant's basic rights. Fact finding, interpretation of law and application of law lie within the jurisdiction of ordinary courts not the Constitutional Court. Administrative agency should consider the normative principle of basic rights and constitutional decisions when it implements the law through the interpretation of legal provisions, unfixed legal concepts and its own discretionary power. When administrative agency does not consider the constitutional spirit and consequently infringes upon citizen's basic rights by ignoring the constitutional effects to the law, the interpretation and application of the law becomes a subject matter under review by the Constitutional Court. When the issue of misinterpretation and misapplication of law is decided under the misapplied law, however, the very issue will be decided under the jurisdiction of ordinary courts, not the Constitutional Court (15-1 KCCR 223, 237-8, 2002Hun-Ma106, February 27, 2003).

Contrary to my analysis, complainant's argument as well as the majority opinion is directed to the issue whether complainant violated the Instant Provision considering various factors such as the contents of remarks, timing, and the size and the nature of the event. However, the issue here is whether respondent's misinterpretation violated the law not the Constitution because the respondent's alleged

misinterpretation should be decided with the very law not the Constitution (15-1 KCCR 223, 238, 2002Hun-Ma106, February 27, 2003). In 2002Hun-Ma106, this Court decided that Constitutional Court cannot review the issues regarding 'the concept of periodicals' and 'the power' of NEC Seoul District Chief because this Court found that those issues deal with the issue of theinterpretation and application of law (15-1 DCCR 223, 238, 2002Hun-Ma106, February 27, 2003). It hardly happens that the subjectmatter is different from the subject of substantial recourse like the majority opinion, except when the specific administrative measure could be found unconstitutional due to unconstitutionality of pertinent laws pursuant to Article 75 Section 5 of the Constitutional Court Act. In general, this could happen when the administrative action, with lack of legal effect independent of the interpretation of pertinent regulations of it or substantial relatedness to basic rights guaranteed by the Constitution, was taken to be subject of review on merits. The Constitutional Court seemed to avoid these results through not taking interpretation of law or statement, in principle, as the subject matter.

In this regard, the majority opinion mistakenly adopted the Instant Provision as a subject matter after finding Notices constitutional although Notices are without legal effects.

(G) In conclusion, Notices in the instant case do not constitute the exercise of governmental power without legal effects to complainant.

(3) 2002Hun-Ma106 ("OhMyNews Case") as precedent and its meaning

(A) In OhMyNews case, this Court decided that NEC Seoul District Chief's notice to prohibit the internet media company (OhMyNews Company)'s scheduled discussion among Presidential Candidates is not the exercise of governmental power (15-1 KCCR 223, 235-6, 2002Hun-Ma106, February 27, 2003). Notices in this instant case and the notice in the cited precedent are same in their natures.

(B) Considering various natures such as format, purpose and previous NEC business practice, I find Notices in the instant case are cooperation request and compliance request. Comparatively, the notice

in the precedent is found to create more subjective and psychological effects because it was issued based on an election which has a penalty provision.

(C) I disagree with the majority opinion when they say that the precedent is distinguishable from the instant case because Notices in the instant case practically restricts complainant's basic rights by issuing legal decision and warning. The notice in the precedent delivers NEC's decision that 'open interview violates "POEA" Article 254" and 'future violation will be strictly dealt with."

The majority opinion distinguishes the instant case from the precedent because this instant case is a sort of warning of NEC Act, Article 14 Section 2 by dealing with the past act while the precedent is a simple cooperation request by dealing with a possible future violation. I disagree. First of all, the 'warning' of NEC Act, Article 14 Section 2 is not a decision of the Judiciary or quasi-Judiciary to punish the past violation. NEC Act, Article 14 Section 2 is to increase the effectiveness of election management by allowing NEC staff to implement the provision with some discretion. It is enacted because this effective management of election cannot be achieved only by retroactive punishment. Accordingly, whether a measure falls into the warning of NEC Act, Article 14 Section 2 does not depend on whether it includes legal assessment on the past violation.

Comparing one circumstance where there is not-recurrence request for those who are likely to violate law with past violation, the other circumstance where there is a restrain request for speaking of future violation expressively, the former neither causes more disadvantage for the recipient, nor has stronger exercise than the latter even though the former included the assessment of the past violation. These Circumstances are basically the issue of context of cases not the issue of legal effect on the recipient. If Notices in the instant case established exercise of governmental power, it should not be based on retrospective punishment for past violation, but based of the complainant's future disadvantage of not pursuing the same action as the already assessed as violation. The precedent case implied such a disadvantage too. The instant case and the precedent are distinguishable in their cause of actions not legal effects. Therefore,

Notices in the instant case and the notice in the precedent are the same compliance request with the same format and connotation.

(D) Therefore, OhMyNews case should not be distinguishable from the instant case, and has the value as a precedent applied to the instant case and there is no change of circumstances to decide otherwise.

(E) Sub-conclusion

The nature of Notices is the non-enforceable compliance request or the opinion on legal interpretation. Further, given the precedent 2002Hun-Ma106 which denied the exercise of governmental power, I do not find Notices in the instant case are the exercise of governmental power.

B. Justiciability issue on complainant's legal standing

(1)State, government entity, branch of government, and public figure are, in principle, the leading roles of basic rights not holders. Indeed, they are in the position to protect and materialize citizen's basic rights. Therefore, government entity in this position cannot be the holder of basic rights without right to file constitutional complaint (6-2 KCCR 477, 480, 93Hun-Ma120, December 29, 1994). With respect to this, there is no difference between the state organ composed of several natural persons and the organ composed of only one person.

(2)There arises an issue whether the constitutional complaint of an individual holding an Office should be identified as that of an individual or government entity. In the instant case, complainant filed this constitutional complaint as a natural person, Roh Moo-hyun, to seek the relief for the infringement of his basic right as one of people, detaching the status of state organ, the institution of Presidency.

Clearly, the Constitutional Court must not decide this issue depending upon the name of party and the arguments of the

complainant written in the Request for the constitutional complaint. Justiciability on legal standing will not be satisfied if Notices in the instant case restrict the rights and the scope of work of a person performing the public duty at the broad meaning of governmental organization. However, it will be satisfied if the same measures restrict the constitutionally guaranteed basic rights of a private figure. Accordingly, it will be necessary to identify the nature of complainant by determining the subject and the connotation of regulation as the subject matter of a petition. In general, it would be sufficient to identify the connotation of the contested provisions. However, since the subject matter of the instant case has the characteristic of specific measure of state organ, it will be necessary to determine objectively the connotation of the regulation and the nature of complainant by considering the whole situation including the purpose, intention, format, contents and effect of Notices in the instant case.

(3)Notices in the instant case finds complainant's violation of 'the duty of impartiality toward elections as President' and requests future cooperation to avoid possible violation of election law as they also remind complainant of his duty to manage fair elections as the head of the Executive. Indeed, they are related to President Roh Moo-hyun's duty in his public life not the exercise of basic right in the private area of natural person, Roh, Moo-hyun.

(4)There is no problem in allowing President to file a constitutional petition if a government action restricts President's basic rights in his private life. However, we should note the significance of President's position and status which include the constitutional status as President, President's power and privilege and duty. While enjoying the status of the head of a state, the head of the Executive, exerciser of sovereignty and the protector of a state, President has the broad and comprehensive power in the entire state affairs including Administration, Legislature and Judiciary by being situated at the highest level of governmental power. In this regard, President's remarks, other than purely private and personal matters, purport to implement state policy in its nature by being the general tool for the operation of state affairs. They are closely related to President's

exercise of power and duty. Therefore, Constitutional Court has rendered an opinion that President's acts in line of duty include not only "those prescribed by law" but also "any act done in relation to the operation of state affairs as President "such as visitation to various events and industry sites, completion ceremony, attendance to formal reception and other events and special media address and interview to explain government policy (16-1 KCCR 609, 633, 2004Hun-Na1, May 14, 2004).

It is difficult to divide President's public area and private area. President's everyday life is presupposed by his status as a constitutional organ attached with broad power and privilege. Of course, these power and privilege and accompanied by heavy responsibility and duty. In this regard, it is impossible for the President, Roh Moo-hyun to transform suddenly from himself as the President to natural person, Roh Moo-hyun. Despite complainant's assertion that the speeches at EFPG and Wonkwang University were directed to participants of the events, those events were scheduled in the middle of President's official schedule and his remarks were supposed to be known to the public through broadcasting. Further, complainant's remarks include his criticism against specific party, its candidates and their policies. These remarks were made by complainant as President as closely related to the execution of his public duty. In some cases, they could be understood as the means to realize President's political agenda.

With respect to this issue, the majority opinion states that complainant's act is from the mixture of his public and private area and President's private area still enables him to file a constitutional petition. Even if the public and the private area of a government entity are mixed, an individual with the status of government entity should not have a legal standing for constitutional petition because a measure targeted to state organ necessarily has an influence on the individual or member of the state organ. If we allow this, there is a great danger of abuse of constitutional adjudication system by government entities. Despite mixture of public and private areas of complainant, complainant does not have a legal standing on this constitutional complaint if Notices are more likely to restrict complainant's privilege and scope of work in public area. The instant

case falls into this category.

(5)Given the complicated nature of President's public and private area, we should consider possible disorder caused by numerous constitutional petitions filed by President whenever President faces any governmental actions which restricts his work. It is not plain question of infringement individual's basic right and the remedy as long as complainant maintains the status of the President as a summit of State power. It is needed to consider the realistic side effect derived from the manipulation of logic, and this is entailed from the fact that the constitutional complaint is essentially a control against governmental power as a means of remedy for infringement of basic right by the state power. Further, Notices in the instant case are meaningful action made in the midst of check and balance embedded in the principle of separation of powers. They are not the typical type of the exercise of governmental power toward ordinary citizens. As discussed before, Notices are mere compliance request without direct legal effects. If the Instant Provision reveals a problem, President may attempt to amend it with legitimate legal and political power. If the amendment is practically impossible, then it lies in political arena.

(6) Sub-conclusion

In conclusion, complainant is a government entity as President and not qualified to file a constitutional petition.

C. Conclusion

Notices in the instant case do not constitute the exercise of governmental power and complainant lacks a legal standing because he is President as a government entity. For this reason, I disagree with the majority opinion and dismiss this constitutional complaint.

9. Justice Cho Dae-hyen's Dissenting Opinion

A. Notices in the instant case are the exercise of governmental power

I agree with the majority opinion when they decide that Notices in the instant case are the exercise of governmental power pursuant to Constitutional Court Act, Article 68 Section 1 because respondent issued a non-violation request to complainant after finding complainant's remarks violated the Instant Provision pursuant to NEC Act, Article 14 Section 2. Furthermore, I believe that NEC's legal finding of the violation on complainant's remarks alone may constitute the exercise of governmental power. Likewise, respondent's request for non-violation constitutes the exercise of governmental power.

B. Notices in the instant case infringes complainant's freedom of expression

Complainant should respect and follow respondent's legal finding and its compliance request as an individual as well as President. In result, complainant should abstain from making further unlawful remarks. If complainant's remarks which is restricted by Notices in the instant case is related the freedom of expression, then Notices in fact restrict complainant's freedom of expression.

President is the holder of basic rights as one of citizens in a personal level while he or she is a governmental entity to protect citizens' basic rights by exercising governmental power. A person holding President's Office has the dignity and value of human entitled to the freedom of the pursuit of individual happiness and individual activities. Further, the person enjoys the right to vote and the freedom of press.

President may engage in political activity as President as well as an individual. As President, he or she designs the future of a state and promotes the public awareness on government policies. As an individual, he or she becomes a member of a political party and engages in political activities. When a person engages in political activity as President, concurrently, he or she should bear the responsibility as a public servant to people pursuant to the Constitution, Article 7 Section 1. However, when a person engages in political activity as an ordinary citizen, her or her basic rights should be warranted and, in case of infringement of basic rights, a remedy may be sought at constitutional court pursuant to Constitutional Court

Act, Article 68 Section 1.

The remarks at issue are political expression. The remarks about government's policy and achievements are deemed to be made by complainant as President. However, the remarks about Grand National Party and its candidate are deemed to be individual political expression from a different political stance. These are more likely to be the individual's freedom of press protected by the Constitution, Article 12Section 1. Despite the mixed nature of the remarks made by President and by an individual, the remarks made by an individual should be protected.

For this reason, respondent infringed complainant's freedom of political expression when it found that complainant's individual political expression violated POEA, Article 9 and made a request for no further violation.

C. President is not subjected to the Instant Provision

(1)Respondent's Notices assume that President has the duty to comply with the Instant Provision.

(2)The Instant Provision prescribes that "public officials and others who should keep the political impartiality (including organs and bodies) shall not exert improper influence to elections and shall not act in a manner which may influence the results of elections."

Those who should comply with the Instant Provision are 'public officials and others'. Here, 'public officials' are the example of 'those who should keep the duty of impartiality'. The scope of 'public officials who should keep the duty of impartiality' should be interpreted in light of the Constitution and laws regulating public official's status and position. We should not interpret the law in such a way that all those who may exert improper influence to elections are 'public officials who should keep political impartiality'. This interpretation is nothing but saying that all those who may possibly violate the Instant Provision are public officials who should keep the Instant Provision.

(3)The Constitution, Article 7 Section 2 prescribes that "the status

and political impartiality of public officials shall be guaranteed as prescribed by Act." It implies the status of public officials is guaranteed even in the middle of regime changes and yet does not impose the duty of political impartiality on all public officials. There is hardly any legislation which requires elected public officials to keep the duty of impartiality on politics and political campaign.

Further, Public Officials Act, Article 65 prohibits the political activity of public officials. However, the Act, Article 3 Section 33 prescribes that "Article 65 does not apply to public officials designated by Presidential Decree." The President Decree lists President, Prime Minister, Members of National Council, Members of The National Assembly and Vice Minister of the Executive to be those to whom Public Officials Act, Article 65 does not apply.

Public Officials Act, Article 3 Section 3, Article 65 Section 2 allows elected or appointed high officials including President to engage in acts to support or oppose a specific political party and candidates and yet does not limit the timing of those acts. 'The acts to support or oppose a specific political party and politicians' are allowed in connection with a specific election.

Under the Public Officials Act, Article 65 Section 2, President and Members of National Council are immune to the duty of political impartiality and further allowed to engage in campaign work.

For this reason, I do not find that President is 'a public official who should keep political impartiality' under the Instant Provision.

(4) There is no reason to interpret the Instant Provision to be a special provision of POEA, Article 65 Section 2.

(A) There is no need to require President to comply with the Instant Provision for fair management of election because President is neither in charge of election management nor in the position to interfere with election management with substantial influence. Even if local public officials and public education officials assist the election management work, it is difficult to determine that President's political activity improperly influences their election management work.

(B) President is allowed to engage in party activity and political

activity under POEA, Article 65 Section 2. Therefore, I cannot find that such activities of President violate the principle of equal opportunity for political party and deteriorate voters' free decision making process.

(C) President is prohibited from certain campaign work, campaign work with the abuse of Presidential power and specific activities which may influence election under POEA, Article 60 Section 1, Article 85 Section 1 and Article 86 Section 1. They clearly state that President is one of leading roles for these provisions. President is prohibited from engage in any act which may improperly influence the result of election by Article 60 Section 1, Article 85 Section 1 and Article 86 Section 1.

Therefore, there is no reason to interpret the Instant Provision to be a special provision of POEA, Article 65 Section 2.

(D) It is not reasonable to find that Members of the National Assembly and local assemblies do not fall into the category of public officials in the Instant Provision while other elected and appointed high officials do. Although President may influence election by abusing his or her supervising power of public officials, President should not be subject to the Instant Provision because POEA, Article 85 Section 1 regulates this issue of potential abuse of Presidential power. Contrarily, Public Officials Act, Article 65 Section 2 does not separate President from the members of The National Assembly and local assemblies in allowing political activities.

(E) Therefore, I conclude that such elected and appointed high officials like President should not be subject to the Instant Provision when I review the legislative intents and make the interpretation from the perspective of normative consolidation of the following Acts: 1) Public Officials Act, Article 65 Section 2 which allows the political activities for the elected and appointed high officials; 2) the Instant Provision and 3) POEA, Article 60 Section 1, Article 86 Section 1.

If these provisions are interpreted such that the elected and appointed high officials including President should comply with the Instant Provision, this interpretation will result in infringing upon their

individual freedom of political activities.

D. Conclusion

I conclude that respondent misinterpreted and misapplied the Instant Provision when it issued Notices in the instant case based on the finding that President is subject to the Instant Provision. Notices in the instant case cannot be justified by the Instant Provision in lack of legal basis.

Notices in the instant case request should be invalidated because they violate the Constitution, Article 21 Section 1 and Article 37 Section 2. In addition, respondent issued Notices in the instant case by including President in "public officials" in the Instant Provision which is the misinterpretation of the Instant Provision.

The reason Notices infringe on complainant's basic right is the NEC's misinterpretation and misapplication that the public officials in the Instant Provision include the President, this misinterpretation leads to the infringement of the individual freedom of political activities for the elected and appointed high officials including President and therefore the Instant Provision should be found to be unconstitutional pursuant to the Constitutional Court Act, Article 75 Section 5, as long as "Interpreting the Instant Provision to include the President in the 'public officials' in the Instant Provision".

10. Justice Song Doo-hwan's Dissenting Opinion

I have different interpretation of meaning legal nature scope of application and infringement of basic rights of the Instant Provision.

The issue in the instant case is whether respondent Notices about complainant's remarks are unconstitutional. The legal issue in the instant case raises a constitutional question whether President may be permitted to make personal political expression to what extent. This issue will be raised again as long as the current Presidential system and election system last.

A. The Instant Provision's legal nature (declaratory regulation)

(1)I believe the Instant Provision declares the principle of public officials' duty of impartiality toward election in a general and an abstract way when I review the position of the Instant Provision and its abstract nature without any penalty provision.

First, the Instant Provision is placed in Chapter 1, "General Rules". Second, the provision about detailed prohibition and regulations are described in Chapter 7, Article 60 (prohibition of campaign work), Article 85 (prohibition of campaign work by abusing one's status) and Article 86 (prohibition of acts influencing election). Third, Instant Provision prescribes " …… shall not exert improper influence to elections and shall not act in a manner which may influence the results of elections" which is a comprehensive and an abstract regulation. Fourth, unlike provisions in the Article of Chapter 7, the Instant Provision does not have penalty provision for criminal prosecution. Fifth, the Instant Provision's legal structure bears the same declaratory and abstract nature as Article 6 Section 3 ("voters shall exercise due diligence to vote"), Article 7 (political parties and their candidates shall comply with the Instant Provision and perform fair competition"), Article 8 (media shall maintain fairness when broadcasting news coverage, comment, interview and debate").

(2)The Instant Provision is a general and declaratory provision regarding the principle of public officials' impartiality toward election. It is detailed by POEA, Article 60, 85, and 86 which prescribes separate and detailed regulations. Therefore, the Instant Provision cannot be the basis for independent and concrete regulation.

(3)Respondent misunderstands the Instant Provision when it issues Notices based on the declaratory and abstract law and thus exercise the governmental power which may result in infringement of basic rights. Therefore, Notices infringes complainant's constitutionally guaranteed freedom of political expression without legal basis and subsequently should be invalidated.

B. Applicability of the Instant Provision (whether President is subject to the law)

(1) Meaning of "public officials and others who should keep political

impartiality"

The Instant Provision prescribes "public officials and others who should keep the duty of political impartiality shall not exert improper influence to elections and shall not act in a manner which may influence the results of elections." Here, public officials and others who should keep political impartiality are subject to the Instant Provision. Then, we should find whether President is one of 'public officials and others who should keep political impartiality'. To determine this issue, we need to review the purpose and limitation of the freedom of political expression under the Constitution, President's constitutional status, relation to political party system and constitutional regulation on public officials system.

(A) Purpose and limitation of the freedom of political expression under the Constitution

The exchange of information and the free expression are essential for successful exercise of voting rights granted by the Constitution, Article 1 Section 2 and Article 24. These are important factors to guarantee an individual's basic rights as well as people's successful exercise of basic rights (See 8-1 KCCR 289, 305, 96Hun-Ma9, March 28, 1996).

A certain degree of limitation on the freedom of political expression is unavoidable in order to achieve the fairness of election.

In the process of limitation, however, the rule against excessive restriction should be observed under the Constitution, Article 37 Section 2 (11-1 KCCR 675, 713, 98Hun-Ma214, May 27, 1999). Among limitations, the restriction on the 'method' of expression is regulated with wide discretion for reasonable public benefit while restriction on the 'content' and 'subject' of expression is regulated with a strict standard only for important public benefits (7-1 KCCR 499, 92Hun-Ba29, April 20, 1995; See 14-2 KCCR 856, 869, 2000Hun-Ma764, December 18, 2002).

The Instant Provision deals with the 'content' and 'subject' of expression.

(B) Status of President as a political public official and his or her freedom of political expression

The general rule for the freedom of political expression and its limitation applies to an individual holding a Presidential Office in the same manner. It is because President is a 'private figure who can exercise his or her basic rights and engage in his or her political party' as well as 'a constitutional organ who owes the duty to serve people and realize public benefits' (See 16-1 KCCR 609, 638, 2004Hun-Na1, May 14, 2004). To review the instant case, we need to focus on President's role as a political leader among many overlapping roles and statues.

1) Under the current presidential system in our country, President acquires legitimacy for direct governance through the political process of election. This role of President is performed through political parties. President collects people's political opinions and reflects them to the administration through political party's organization and the engagement in parties' activities.

In this regard, President is permitted to join political party under the Political Party Act, Article 22 Section 1; to be nominated by political parties under Public Officials Election Act, Article 47 Section 1, Article 49 Section 2; and to be engaged in a certain amount of political activities under Public Officials Act, Article 65 Section 2 Item 1, Article 3 Section 3). They clearly show the Constitution recognizes President's status as a political leader.

2) Under the current political system, President is the same political being as the members of The National Assembly in its nature because President is elected through election. Therefore, it is natural and necessary for President to express his or her political opinion regarding national affairs including election.

3) It is questionable whether President's status and role may be affected be retaining the membership to a certain party. Since President may always join a party and work in the coalition with a certain political group in the National Assembly, President's

membership of a party at a certain time does not make a difference.

Although some people propose the prohibition of President's political expression which may influence election under the Constitution, Article 70 ("President's shall not be reelected"), I disagree.

Whether it is President Election or the National Assembly Election, they are the forms of evaluation on a governing party's work as well as opposing party's ability for alternative policy. This evaluation process determines whether the governing party may still Gain the power. For this reason, President should be able to express political opinion because his or her political policies will be evaluated by election. Even if President may not be reelected, his party will be judged by election based on the evaluation of his or her political policies.

(C) Systematic interpretation in accordance with other relevant provisions including Public Officials Act.

1) Public Officials Act, Article 65 Section 1 prescribes 'public official shall not be engaged in establishing political party and organization'. Public Officials Act, Article 65 Section 2 prescribes '(public official) shall not act in support or against a specific political party and a candidate in election'. However, the same Public Officials Act exempts such political public officials as President from this duty. In other words, it allows President to engage in those acts involving election.

2) Public Officials Act, Article 65 Section 2 regulates public officials' expression on election and yet is a little different in details from the Instant Provision, Article 60 Section 1, Article 8 Section 5 and Article 86. Upon this review, I find that Public Officials Act, Article 65 Section 2, although placed in Public Officials Act, should be interpreted as one of important election laws in a practical sense. Therefore, we have to interpret the Instant Provision in accordance with the purpose and contents of Public Officials Act, Article 65 Section 2.

3) Some people argue that the Instant Provision is a special

provision of Public Officials Act and therefore Public Officials Act, Article 65 Section 2 should be ignored. I disagree. The argument lacks the legal basis and thus ignores the legislative intent of Public Officials Act, which, in addition to POEA, is intended to regulate election in details.

4) In addition to the Instant Provision, I review the following provisions: 1) POEA, Article 85 Section 1 ("campaign work by abusing public official's status to be prohibited with the penalty of maximum 5 years of jail time" (Article 255 Section 3); 2) POEA, Article 60 Section 1 ("campaign work by public officials including President but excluding member of the National Assembly to be prohibited with the penalty of maximum 3 years of jail time or maximum 6 million Won of fine" (Article 255 Section 1); 3) Public Officials Act, Article 65 Section 2 Item 1 ("acts of public officials excluding President and member of the National Assembly in support and against specific parties and candidates during election to be prohibited with the penalty of maximum 1 year of jail time or maximum 3 million Won of fine. Upon comparative analysis of these provisions, I find that they define the subjected person according to the nature of violation and the level of punishment of each law.

If President is subject to the Instant Provision, it creates an inconsistency of legal system because President shall be subjected to a less restrictive and comprehensive provision of the Instant Provision whilenot subject to a more restrictive Public Officials Act, Article 65 Section 2.

(D) Sub-conclusion

Upon review of the laws stated above, I conclude that political public officials like President are not subject to the Instant Provision.

(2) Freedom of political expression and fair election

With respect to the freedom of political expression of President other political public officials, one may argue that President should be subject to the Instant Provision to prevent President's possible abuse of

power as well as the improper influence to election.

(A) The fairness of election is an important virtue beside the freedom of political expression. Generally speaking, it is true that the fairness of election may be promoted by the restriction of political expression in some cases. However, it is also true that the restriction of the freedom of expression may deteriorate the true sense of fair election. Depending on how election system and its process are organized and executed, representative democracy becomes either a true measure to guarantee citizens rights or a nominal format.

(B) One can propose that election law should be reformed with the more weight on regulation. If then, however, voters will have difficulty to evaluate different policies and capabilities of parties and candidates. Voters make their decisions freely and fairly when the freely expressed opinions of parties, candidates and political leaders are readily available.

(C) Under the circumstance, I raise a serious doubt on the proposition that political public officials including President should be subject to the Instant Provision in order to achieve 'the fairness of election'. For example, it is questionable that fair election will be accomplished by restricting President's responses to the criticisms made by opposition party during the campaign season while it is almost always true that all the opposition parties will raise the criticisms against President and governing party.

(D) There is a fear that President's political or partisan opinion will hurt fair election by misleading public opinion. This fear, however, is based on the historical experience under authoritative Presidential system. Despite limitations, the current political party democracy and election system can warrant a fair election supported by media watch and people's mature democratic citizenship. Therefore, this kind of fear cannot be justified to be a basis to restrict President's freedom of political expression.

(E) This fear could be erased with strict separate provision of

POEA such as POEA, Article 60 (prohibition of campaign work), Article 85 (prohibition of campaign work with the abuse of power) and Article 86 (prohibition of acts which influences election).

(3) Sub-conclusion

I conclude that President is not subject to the Instant Provision. If President is interpreted to be one of 'public officials' under the Instant Provision, this interpretation is unconstitutional. Respondent's Notices in the instant case, therefore, should be invalidated because they are based on the unconstitutional interpretation of the Instant Provision which defined President as the subjected person to the Instant Provision.

C. Additional issues (rule of clarity)

(1)In enacting the laws regulating the freedom of expression, the rule of clarity is of significant importance. If a law is not clear, an individual with basic rights, not sure of what is restricted, will voluntarily withdraw from any actions in anticipation of possible violation (chilling effects). Therefore, it is the constitutional principle that any law restricting basic rights should be clear and distinct. (10-1 KCCR 327, 342, 95Hun-Ka16, April 30, 1998; 14-1 KCCR 616, 628, 99Hun-Ma480, June 27, 2002; See 15-1 KCCR 7, 19, 2001Hun-Ka4, January 30, 2003).

(2)The Instant Provision prohibits 'improper influence to elections and any acts which may influence the results of elections'. Upon careful study of this provision, I find that 'any acts which may influence the results of election' is the core concept and the 'improper influence' is its example. It is difficult to determine which act is restricted from the language, 'any act which may influence the result of election' as it yields to different interpretations of the provision depending on perspectives. Unless this provision was enacted to prohibit all the acts based on different interpretation, this provision alone does not make it possible to anticipate what is prohibited to what extent. For this reason, I have the serious suspicion on the constitutionality of the Instant Provision because the

Instant Provision yields to the subjective interpretation of law.

(3)Of course, the problem with rule of clarity can be cured by supplementary interpretation of law. In this regard, the majority opinion interpreted the act to be "any act influencing numbers of votes in elections by the way not in accordance with public officials' duty as public servant given political power and weights" (2004Hun-Na1, May 14, 2004). Despite this interpretation, I have a great doubt whether this interpretation is within the boundary of constitutional interpretation because of its ambiguity.

(4)It is true that this Court previously rendered an opinion on POEA, Article 93 Section 1 that the language of 'purpose of influencing election' is not against the rule of clarity' and therefore it is constitutional (See 13-2 KCCR 174, 202, 99Hun-Ba92, August 30, 2001). 'Purpose of influencing election' is about the intent of an action as a subjective factor while acts 'which may influence the result of election' in the instant case is about act itself as an objective factor. They are of two different natures and therefore should be distinguishable.

(5)This Instant Provision is not clear about the definition of the act and makes it difficult for NEC to set a principle in determining the issue of violation on such remarks as those in the instant case. Further, it leaves the possibility of endless political disputes in the future involving President's political expression and political activities absent ambiguous determination on whether President is subjected to the Instant Provision. This will likely to deepen the politicization of the Judiciary.

(6)Upon the review of inherent ambiguity of the Instant Provision, I decide that the Instant Provision is a general and declaratory regulation. If it is applied as a practical regulation, then, President and other political public officials are not subject to it.

D. Conclusion

Respondent misinterpreted and misapplied the Instant Provision by misunderstanding its legal nature and its scope of application when respondent issued Notices of violation to complainant about complainant's expression of personal political opinion.

Therefore, Notices in the instant case infringes complainant's freedom of political expression and therefore should be invalidate in lack of legal basis pursuant to the Constitution, Article 21 Section 1 and Article 37 Section 2.

Further, respondent's infringes complainant's basic rights because of misinterpretation that 'public official' in the instant case includes President. Therefore, under the Constitutional Court Act, Article 75 Section 5, this Instant Provision should be found unconstitutional insofar as "the Instant Provision interprets that 'public official' includes President".

Justices Lee Kang-kook (Presiding Justice), Lee Kong-hyun, Cho Dae-hyen, Kim Hee-ok, Kim Jong-dae, Min Hyung-ki, Lee Dong-heub, Mok Young-joon, Song Doo-hwan (Assigned Justice).