Day and Time of, and Method ofDetermining the Elect at the Reelection and the Vacancy Election for Members of the National Assembly

[15-2(B)KCCR339,2003Hun-Ma259,etc.,(consolidated),

November 27, 2003]

Held, the provisions of the Act on the Election of Public Officialsand the Prevention of Election Malpractices providing for the reelectionand the vacancy election for the members of the National Assembly to be held on a Thursday that is not an official holiday, for the vote to be closed at six o'clock in the afternoon, and for the election to be determined by a simple majority of valid votes regardless of the voting rate are constitutional.

A. Background of the Case

The Act on the Election of Public Officials and the Preventionof Election Malpractices provides for the reelection and vacancy elec-

tion for members of the National Assembly, as in the general electionfor members of the National Assembly, that the vote shall takeplace on a Thursday, from six o'clock in the morning to six o'clock in the afternoon, and that a candidate who obtains a simple majority of the valid votes shall be elected regardless of the voting rate.

On the other hand, the government designates the election date forthe general election for members of the National Assembly, unlike forthe reelection and the vacancy election therefor, as an official holiday,pursuant to a presidential decree of the Regulation on Public Office'sOfficial Holidays.

The complainants in this case, who were the candidates and the voters at the reelection and the vacancy election for members of theNational Assembly held on April 24, 2003, filed the constitutionalcomplaint in this case on the grounds that the above provisions are against the principle of people's sovereignty and violate the right to equality and equal vote, as such elections are held on a Thursdaythat is not an official holiday and time for the vote at such electionsis not extended thereby restricting the exercise of the voting right

of those who have a vocation, and a candidate is elected by a simplemajority regardless of the voting rate thereby intruding the representativeness that is the essence of the election.

B. Summary of the Decision

The Constitutional Court, in a unanimous opinion, held that the above provisions at issue in this case are not unconstitutional. The grounds therefor are stated in the following paragraphs.

(1)The Act on the Election of Public Officials and the Preventionof Election Malpractices provides identically for the general election formembers of the National Assembly and the reelection and vacancy election for members of the National Assembly in terms of the dayof the week of the election and the time period available for voting. Therefore, it does not discriminate between voters and candidates at the general election and voters and candidates at the reelection and vacancy election, in these regards.

The government designates the election date for the general elec-

tion as an official holiday. However, as indicated above, this ispursuant to the Regulation on Public Office's Official Holidays. There-

fore, implementing the reelection and the vacancy election without designating the date therefor as an official holiday is not a question for the Act on the Election of Public Officials and the Prevention of Election Malpractices itself in this regard.

Furthermore, Article 41 of the Constitution provides that theNational Assembly shall be constituted by the Assemblypersons electedby general, equal, direct, and secret vote of citizens (Section 1), andthat matters concerning the election of members of the NationalAssembly including the election district and the proportional repre-

sentation system shall be regulated in statutes (Section 2).

It would be desirable, in light of the principle of representative democracy, to secure representativeness of the elected by promoting convenience of voting on the part of the voters and increasing thevoting rate. However, matters concerning whether or not to designatethe date of the reelection and vacancy election for members of theNational Assembly as an official holiday and whether or not to extendtime for voting until after the normal business hours fall within themeaning of such other 'matters concerning the election' duly delegatedby the Constitution to the purview of the legislators' law making power.

The current provision of the Act on the Election of Public Officialsand the Prevention of Election Malpractices that designates a Thursdayas the election date and designates the time for voting identically forboth the

general election and the reelection and vacancy election formembers of the National Assembly does not fall outside the scope ofsuch legislative discretion of the legislators.

(2) The Constitution requires that the method of election be thatof general, equal, direct, secret, and free vote. The representativenessof the election is sufficiently secured and realized under the current method that provides all voters with an opportunity to participate in voting without discrimination thereagainst, assesses the votes of thevoters participating in the election at equal value, and determines thecandidate who has obtained a majority of valid votes to be elected.

There can be found no clearconstitutional provision or constitu-

tional principle that requests anadditional requirement ofthe mini-

mum voting rate system in order to further secure the representative-

ness of the election.

If the minimum voting rate system were to be introduced, asargued by the complainants, in case the actual voting rate would turnout to be lower than the required minimum voting rate, voting shouldbe repeated until the voting rate would reach the minimum voting rate,which might cause complication and waste of time and cost. If suchmethods as civil penalties or fine were to be adopted in order to prevent such situation thereby compelling the voters to vote, this would unjustly abridge the freedom to form opinions of the voters and, as the result, might infringe upon the right to vote, therebyviolating the principle of free election.

(3) To conclude, the provisions of the Act on the Election ofPublic Officials and the Prevention of Election Malpractices concerningthe date and the time of the reelection and the vacancy election formembers of the National Assemblyare within the scope of the leg-

islators' law making power and, as such, do not abridge the right toequality or equal vote or the right to participate in politics of thecomplainants who are the voters. The provision of the Act on theElection of Public Officials and the Prevention of Election Malpracticesdetermining the election by a simple majority of the valid votes is not in violation of the essence of representativeness of the election or the principle of people's sovereignty.