Prohibition of Statements of PartyAffiliation ofCandidatesfor Election to a LocalCouncil

(15-1 KCCR 7, 2001Hun-Ka4, January 30, 2003)

Contents of the Decision

1.Whether the constitutionality of Article 47(1) of the Act on the Electionof Public Officials and the Prevention of Election Malpractices, which prohibits the political party from recommending a candidate for election to a local legislature of an autonomous local council is at issue as a precondition of the trial in the underlying litigation wherea candidate for election to an autonomous local council was chargedon the ground that the candidate had expressly stated the endorsementand recommendation of a particular political party in violation of Article 84 of the Act (negative).

2. Whether the provision in Article 84 of the Act on the Election of Public Officials and the Prevention of Election Malpractices that prohibits "candidates for election to an autonomousKu/Shi/Kun1)council" from expressly stating the endorsement or recommendationof a particular political party infringes upon the freedom of political expression (affirmative).

3. Whether prohibiting the expression of political party endorsementor recommendation by the candidates for election to an autonomouslocal council and not by the candidates in other local elections violatesthe principle of equality (affirmative).

Summary of the Decision

1. In a case where a candidate for election to an autonomous local council was charged on the ground that the candidate had expresslystated the endorsement and recommendation of a particular political party in violation of Article 84 of the Act on the Election of PublicOfficials and the Prevention of Election Malpractices (hereinafter referredto as the "Public Officials Election Act"), Article 47(1) thatprohibitsthe political party from recommending a candidate for election to a locallegislature of an autonomousKu/Shi/Kuncouncil is not applicable to the underlying case, and, further, the constitutionality of Article47(1) of the Public Official Election Act is systematically not inseverablyrelated to the constitutionality of Article 84 of theAct as the twoprovisions differ in their applicability and content. Therefore, the partof the instant constitutionaladjudicationin which thepetitionerchal-

lenges the constitutionality of Article 47(1) of the Public Officials Election Act is not appropriately before the Court as it is not at issue as a precondition of the trial in the underlying litigation.

2. The choice of whether to vote for a political party or to vote based on the judgment of particular candidates facing an election ultimately lies with the citizens as the bearer of the sovereignty, and it is not desirable in light of the principles of democracy that the legislators replace for their own or interfere with such choice ofthe citizens as the guardians of the people through legislation. Therefore,the specificlegislative intent to remove the influence of the political parties andto encourage instead a vote based on the judgment ofparticular candidates at the election for the members of an autonomouscouncil may hardly be justified.

The content of Article 84 of the Public Officials Election Act may also lack efficacy

in terms of securing the decentralization of powers and the autonomy of the local government as the causation is much too attenuated between the knowledge of the voters as to the political party endorsement and recommendation of a particular candidate and the impediments upon the decentralization of powers and the autonomy of the local government.

Furthermore, whereas the impact of Article 84 of the Public Officials Election Act in terms of its contribution to the legislative purpose of achieving the original goals of local self-government is highly uncertain or immaterial, the degree of the infringement upon the basic right by Article 84 is conspicuous. For example, Article 84 mandates a candidate to remain silent even toward the voters specifically asking the existence of political party endorsement or recommendation. This is excessively severe for the candidates in an autonomous local council election who intend to enter politics byway of a political party. Further, an excessive ban on the expressionof political party endorsement or recommendation may lead to a vote while the voters are ignorant of the candidates or their political tendencies or an outright forfeiture of the voting right out of a lack of interest in the election because the information as to the politicalparty endorsement or recommendation inevitably serves as a practicallyimportant factor the voters consider in exercising their voting rightas it is practically very difficult for the voters to analyze and assessthe qualifications and the capabilities of individual candidates due to the scarcity of opportunities for the voters to actually contact thecandidates for the autonomous local councils under such various restric-

tions to guarantee the fairness of the election as the fourteen(14)-day limitation for the electoral campaign for a local legislature electionand the ban on the electoral campaign activity prior to the designatedcampaign period, and, further, due to the fact that the so-called fourlocal elections take place all at the same time. Considering the abovefactors in the entirety, the provision on review here conspicuouslylacks a balance between the conflicting legal interests, as there is noreasonable proportionate relations between the benefit of the public interest resulting from the prohibition of the political party endorse-

ment or recommendation and the loss therefrom.

In addition, the proviso of Article 84 of the Public Officials Elec-

tion Act permits a candidate's statement of the present or past politicalparty membership. Such statement of political party membership is conventionally made as a way of practically expressing the politicalparty's endorsement or recommendation, thus the main provision andthe proviso of Article 84 have an overlapping field that they regulaterespectively. Thus, Article 84 of the Public Officials Election Act causes unpredictability on the part of the candidates in an electionfor the members of the autonomous local council as to how much theyare allowed to express information concerning the political party of their membership and affiliation in their electoral campaign processand even provides an excuse for the arbitrary exercise of the state'sauthority to penalize particular conducts in violation of the rule of clarity.

Therefore, Article 84 of the Public Officials Election Act excessivelyinfringes upon the freedom of political expression on the part of thecandidates in violation of the principle of proportionality, for an uncer-

tain legislative purpose, in a method that lacks both efficacy and clarity.

3.Should the meaning and the purpose of Article 84 of the Public Officials Election Act be to secure the decentralization of powers and the autonomy of the local government through eliminationof political party's influence thus an election based on the qualification of the individual candidates, the same may be commonly applicable to theelections for the members of the regional local legislature, for the head of the regional local government, and the head of the autonomouslocalgovernment, and not only to the election for the members of the auton-

omous local legislatures or councils. In consideration of any funda-

mental differences between the election of the members of autonomouslocal councils and the rest of the local elections, there is no ground found to treat these elections differently. Therefore, Article 84 of the Public Officials Election Act is in violation of the principle ofequality as this provision disfavors candidates for election to the au-

tonomous local councils compared with candidates in other local elections with no reasonable ground for discrimination.

Dissenting opinion of Justices Han Dae-hyun,

Ha Kyung-chull, and Kim Kyung-il

Harmony is crucial in the question of how to vertically allocate powers between the central and the local governments. Under nocircumstancesshouldany impairment of the essence of the local self-

government, either by the legislation or the central government, be permitted, in the process of promoting such harmony.

If we permit the participation of the candidates recommended bya particular political party in theelection for the members of the au-

tonomous local council just like the other elections for public officials, not considering, particularly, the political reality of the nation that has not yet been able to overcome the problem of regionalism, theundemocratic nature of the political party administration, the electoralclimate dominatedby theregional relations, blood ties, and school con-

nections, and, further, the lack of experience of local self-government, the political party will directly and indirectly influence the politicalactivities of the elected candidates as well as the outcome of the electionfor such particular candidate. This might destroy the autonomous locallegislature that should operate autonomously depending upon the parti-

cularnature and aspect of the autonomous local government unit.

The provision at issue here is both necessary and crucial to theimplementation of the local self-government appropriate for the realityof the specific autonomous local government unit that is not dilutedby the influence of the political party in the formation and the activ-

ities of an autonomous local legislature. This provision is not inviolation of the principle of proportionality or the prohibition of exces-

sive legislation, as the same provision leaves room for the candidatesto at least indirectly state their political ideologies and the informationas to their political party affiliation through the statement of their present or past political party membership (the proviso of Article 84 of the Public Official Election Act) although the same provision pro-

hibits candidates from directly informing the voters of the political ideologies that they pursue or their political party affiliation, and theadvantage of the institutional guarantee of local self-governmentthrough prohibition on thecandidates' expression of political party af-

filiation outweighs any loss caused by limiting the candidates' right to serve in public office and freedom of election campaign.

Furthermore, this provision is not in violation of the principle ofequality,in that, while the provision treats candidates for the auton-

omous local council election differently in the political area of life by prohibiting only such candidates from expressing their politicalparty endorsement or recommendation, this provision is indispensablefor the legislative purpose of institutionally guaranteeing the local self-government that the Constitution pursues and, further, in that the method employed for such legislative purpose is also necessary and the least restrictive for such purpose.

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Parties

Requesting Court

Daejeon High Court

Original Case

Daejeon High Court, 2000No297, Violation of the Act on the Election of Public Officials and the Prevention of Election Malpractices

Holding

1.The "candidate for election to an autonomousKu/Shi/Kun council"

part of Article 84 of the Act on the Election of Public Officials and

the Prevention of Election Malpractices (Amended by Act No. 4947

on April 1, 1995, Prior to Amendment by Act No. 6265 on February

16, 2000) is unconstitutional.

2.The remainder of the request for constitutional review of the statute

is dismissed.

Reasoning

1.Overview of the Case and the Subject Matter of Review

A. Overview of the Case

(1) Choi Woon-yong was a candidate for membership in the au-

tonomous council of the city of Gong-Ju in the second simultaneousnationwide local election that tookplace on June 4, 1998. Choi Woon-

yong was charged with allegedly violating Article 84 of the Act onthe Election of Public Officials and the Prevention of Election Mal-

practices by expressly stating the endorsement or the recommendationof a political party. Specifically, Choi Woon-yong was alleged to have set up on the outer wall of his election campaign office located in Joong-Dong, Gong-Ju, for the period of 09:30 on May 19. 1998 through 16:55 on May 20, 1998, two banners wherein the emblem of the United Liberal Democrats was painted and the statement of the "office of Choi Woon-yong, member of the city council of Gong-Ju, the United Liberal Democrats, 54-7000, 52-1661～2" was printed, and to have disseminated his name cards that contained the emblem of the United Liberal Democrats and stated “Vice Chair, the United Liberal Democrats City of Gong-Ju Office” on the street in front of Ji-Yeon car-wash center located in Joong-Dong on May 20, 1998.

(2)In the above case, the court of first instance, Daejeon DistrictCourt, imposed a fine of ￦3,000,000 against Choi Woon-yong. However,the court of first appeal, Daejeon High Court, found Choi Woon-yong

not guilty, on the ground that the expression as such was a merestatement of his present and past political party membership (99No516). Yet, the court of second appeal, the Supreme Court reversed such decision of the Daejeon High Court and remanded the case on theground that the alleged conduct was practically an expression of partyendorsement or recommendation (2000Do734).

(3)The Daejeon High Court, in thereby re-adjudicating the aboveremanded case,

requestedsua spontethe constitutional review of the part of Articles 47(1) and 84 ofthe Act on the Election of Public Officials and the Prevention of Election Malpractices, on the ground that the "(excluding the election for the members of an autonomousKu/Shi/Kuncouncil)" part of Article 47(1) and the "candidate for election to an autonomousKu/Shi/Kuncouncil" part of Article 84 of the Act infringe upon the freedom of expression and violate the prin-

ciple of equality.

B. Subject Matter of Review

The subject matter of review inthe instant case is the constitu-

tionality of "(excluding the election for the members of an autonomousKu/Shi/Kuncouncil)" part of Article 47(1) ofthe Act on the Election of Public Officials and the Prevention of Election Malpractices(Amendedby Act No. 4947 on April 1, 1995, Prior to Amendment by Act No. 6265 on February 16, 2000; hereinafter referred to as the "Public OfficialsElection Act") and the "candidate for election to an autonomousKu/Shi/Kuncouncil" part of Article 84 of the Public Officials ElectionAct. The contents of the above provisions and the relevant provisionsis as follows:

Article 47 (Recommendation of Candidates by Political Parties)

(1) A political party may recommend its member as a candidate(hereinafter referred to as a "party-recommended candidate") within the limit of the full number to be elected for each constituency in an election (excluding the election for an autonomous Ku/Shi/Kun councilmember).

(2) [omitted]

Article 84 (Independent Candidates, etc. Prohibited from ProfessingPolitical Party)

A candidate for an election to an autonomous Ku/Shi/Kun council

or an independent candidate shall not expressly state that he or she is endorsed or recommended by a specific political party: Provided,That this shall not apply to an indication that he was a political party

member during his career.

Act on the Election of Public Officials and the Prevention of Election Malpractices (Amended by Act No. 4947 on April 1, 1995, Prior to Amendment by Act No. 6265 on February 16, 2000)

Article 256 (Violation of Various Restrictive Provisions)

(1)Any person who falls under any of the following subparagraphsshall be punished by

(i) A person who falls under any of the following items in connection with an election campaign:

(A)～(C) [omitted]

(D)A person who professes to be endorsed or recommendedby a specific political party in contravention of the provisions of Article 84;

(E) [omitted]

2.Opinions of the Requesting Court and the Related Parties

A. Grounds for Requesting Constitutional Review

(1)The act of recommending a particular candidate in an electionfor a public official is by its nature an act of expressing a politicalopinion, and a statute limiting such

political expression should be sub-

ject to a stricter constitutional scrutiny than a statute regulating basicrights of economic nature.

The legislative purpose of theprovisions on review lackslegit-

imacy as it does not surpass abstract and ideological slogans of "grass-

root democracy, decentralization of powers, and self-government by the residents." Further, the above provisions violate the principle ofthe least restrictive means as the alternate means that are both moreappropriate for the constitutional principles and less restrictive are available such as a mandate of decision of a political-party endorsed candidate exclusively by the poll among the members of the localbranch of the political party and the residents as in the preliminariesat the elections in the U.S. Furthermore, in Article 84, the boundarybetween the conduct permitted under the proviso and the conduct prohibited under the main provision is blurred. Therefore, the above provisions are unconstitutional as they impede the essence of the freedom of expression of the political parties.

(2)Independence from the influence of the political parties is even more urgently requested for the heads of the local governments. However, the above provisions single out only the candidates for election to the autonomousKu/Shi/Kuncouncil (hereinafter referred to as the 'autonomous local council') and prohibit them from stating any political party endorsement or recommendation, whereas suchprovisions do not prohibit candidates for election to the local govern-

ment heads from stating such endorsement or recommendation, therebydiscriminating against the former with no reasonable ground.

(3)The proviso of Article 87 of the Act on the Election of PublicOfficials and the Prevention of Election Malpractices (Amended by Act No. 5537 on April 20, 1998) permits the labor unions to support or object to a particular candidate, whereas it prohibits the political party, which is under special constitutional protection and whose original purpose lies with political activities, from recommending a particular candidate for election to the local autonomous council, thereby discriminating against the political party with no reasonable ground.

B. Opinion of the Chief Prosecutor of the Daejeon

District Prosecutors' Office

The legislative purpose of the provisions on review is to realize undiluted local self-government suitable for the reality of the region by eliminating the influence of the political party in the formation and the activities of the local autonomous council. The prohibitionof the express statement of political party endorsement or recommen-

dation on the part of the candidates for the local autonomous councilmembership satisfies the requirement of the least restrictive meansas it is an effective and appropriate means for achieving such purposeand also leaves room to provide information as to the candidates' political ideologies or political party affiliation through the statementof the candidates' present orpast political party membership. Fur-

thermore, two of the conflicting interests are well balanced as the advantage of the institutional guarantee of the local self-governmentthrough the prohibition of stating political party endorsement or recom-

mendation outweighs the loss caused by the infringement upon the political party's freedom of politicalexpression. Therefore, the pro-

visions on review are indispensable to the legislative purpose ofinstitutional guarantee of the local self-government pursued by the Constitution, and neither infringe upon the constitutionally protected freedom of expression nor violate the principle of equality.

C. Opinion of the Commissioner of the National

Election Commission

Largely identical to the opinion of the Chief Prosecutor of the Daejeon District Prosecutors' Office.

3. Review on the legal prerequisites

There is a required relationship of Article 84 of the Public Officials Election Act to the underlying trial, as Article 84 is a legalprovision to be applicable to the underlying trial and the constitution-

ality of Article 84 will materially affect the outcome of the court's decision in the underlying trial.

However, there is no required relationship of Article 47(1) of the Public Officials Election Act to the underlying trial as a matter of principle, as Article 47(1) is not applicable in the underlying trial. Furthermore, whereas Article 84 prohibits candidates from expresslystating an endorsement or recommendation of a political party, Article47(1) prohibits the political party from officially recommending a can-

didate, and, as such, the two provisions differ in their respectiveapplicability and content. Also, thereis hardly any structural insev-

erability between the constitutionality of Article 47(1) and Article 84, as the language of Article 47(1) does not expressly prohibits apolitical party's informal nomination of a candidate (so-called 'internalnomination') or expression of support for or opposition to a particularcandidate. Therefore, the subject matter of the review should not be expanded to include Article 47(1) of the Public Officials Election Act.

Therefore, the request for constitutional review concerning Article47(1) of the Public Officials Election Act is unjusticiable as it lacks the required relationship to the underlying trial. Thus, the Court reviews in the following paragraphs only the merits of the part concerning Article 84 of the Public Officials Election Act.

4. Review on the merits

A. Legislative history with respect to the political

party's participation in the local election

(1) Local elections were revived after approximately thirty years of absence of local elections by the enactment of the Election of Local Council Members Act in 1988. However, there was a divisionfor and against the political party's participation in the local electionbetween the ruling party and the opposition parties at the election of the members to the local legislatures in 1990. The ruling party at that time argued for an elimination of the political parties on the ground that the political party's participation in the local electionwould hinder an autonomous development of the local self-governmentas a result of the subordination of local government to the central government, disorder caused by political disputes, and exacerbationof dissolution and antagonism in the local community. On the contrary,the opposition parties at that time objected on the grounds that thepolitical party's participation in the local election should be permittedas a matter of course in order for the local self-government to sub-

stantively settle, and that the propriety of such should be decided by the residents in the electoral process. Eventually, a compromise was reached at the conclusion of the dispute to permit the politicalparty's nomination in the city("Shi") and province("Do") unit electionsand to prohibit the political party's nomination in the elections ofthe autonomous local unitsofShi,KunandKu, in the form of res-

pective legislations and subsequent revisions of the Election of Local Council Members

Act (Act No. 4311) and the Election of the Heads of Local Governments Act (Act No. 4312).

(2) On March 16, 1994, the Act on the Election of the Public Officials and the Prevention of Election Malpractices (Act No. 4739) was enacted as a uniform law integrating the Presidential Election Act, the Election of National Assembly Members Act, the Election of Local Council Members Act, and the Election of the Heads of Local Governments Act, which had previously been a separate part of the election law system. The above uniform law permitted thepolitical party's participation not only in the election for the regionalgovernment elections, but also in the local autonomous unit elections.

(3) However, immediately preceding the local elections of June27, 1995, the ruling party at that time once again argued for an elim-

ination of the political parties from the autonomous local elections on the ground of apoliticization of the local administration, and, as aresult of the compromise with the opposing parties, an agreement was reached to revise relevant legislations to permit the political party'sparticipation in the election of the head of the local autonomous gov-

ernment yet prohibit the political party's participation in the election of the members of the local autonomous council. Article 47(1) andArticle 84 were revised accordingly, and remain largely unchanged todaywith only partial and minor changes to the language.

B. Legislative purpose and content of Article 84 of

the Public Officials Election Act

(1) Legislative purpose

In light of the above legislative history, Article 84 of the Public Officials Election Act seems to have been adopted under the basicunderstanding that the political party's interference with the autono-

mous local council member election would transform such election toa surrogate battle among the political parties thereby causing hardshipsin the selection of qualified individuals demanded in a particular district,and would also hinder autonomous operations of the autonomous localcouncil by affecting the overall legislative activities of local councilmembers as well as the electionof particular candidates itself. There-

fore, the legislative purpose of the above provision is to substantivelyrealize the original goals of the localself-government of decentraliza-

tion of powers and protection of regional autonomy, by eliminating the political party's influence and inducing an election based on the qualification of individual candidates.

(2) Specific content

The subject of conduct under Article 84 of the Public Officials Election Act is the individual candidate. The political party is not the subject of conduct under the provision, therefore the provisiondoes not apply where a political party expresses on its own initiativeits support for or opposition to a particular candidate.

The conduct regulated by the above provision is the candidate's express statement of the endorsement or the recommendation by a political party. The literal meaning of the term "express statement" is to publicly express and profess an idea or opinion, or an ideology or argument. Therefore, the conduct prohibited by the above provi-

sion is all acts professing and expressly stating to the voters the fact that a candidate is supported by a particular political party or has been recommended by a particular political party as a candidate (SeeSupreme Court Decision 99Do556 delivered on May 11, 1999 (Gong 1999, 1206); Supreme Court Decision 99Do279 delivered on May 25,

1999 (Gong 1999, 1314), etc.).

However, what is prohibited is the expression of the endorsementand recommendation of a candidate by the political party only anddoes not include the candidate's expression that the candidate supportsa particular political party (See1999 Supreme Court Reporter 1314, 99Do3648, issued on January 15, 1999, etc.).

On the other hand, the proviso of Article 84 of the Public OfficialsElection Act permits the candidate's expression of the information relating to his or her political party affiliation or membership suchas his or her present or past position within a particular political party.

C.Constitutionality of Article 84 of the Public Officials Election Act

(1)Whether Article 84 infringes upon the freedom of political expression

(A) The expression by a candidate of the fact that he or she isendorsed and recommended bythe political party of his or her mem-

bership is to inform the voters that his or her qualifications and abil-

ities are verified by such political party and that his or her political beliefs and policy directions pursued, etc., are in line with those of the political party of his or her membership, and to expressly plead to the voters for their support. Therefore, the prohibition under Article 84 of the Public Officials Election Act of the autonomouslocal council candidate's expression of such political party endorsementor recommendation limits the candidate's freedom of political expression.

Also, the above provision restricts the voters' right to know by withholding the flow of information to the voters as to whether a particular candidate is endorsed or recommended by a political party.

(B)A free exchange of variousinformation concerning the candi-

dates is indispensably required in order for the citizens to properlyexercise their right to vote asthe bearers of the sovereignty. There-

fore, it is a matter of course that the freedom of expression of Article21 of the Constitution should be protected to a maximum degree. That is, a candidate should be able to inform the voters of his orher political identity includinghis or her political views and ideolo-

gies, and the voters should be able to access various information concerning the candidate (See8-1 KCCR 289, 305, 96Hun-Ma9, etc., March 28, 1996). Put it differently, as a matter of principle, in an election, the freedom of political expression should be protected to a maximum degree, to the extent that it does not harm fairness of the election, and the principle of proportionality and the least restrictivemeans derived from Article 37(2) of the Constitution should be main-

tained in inevitably limiting such freedom for the sake of the fairnessof the election (See6-2 KCCR 15, 29, 93Hun-Ka4 and others, July 29, 1994).

In light of the legislative purpose of Article 84 of the Public Officials Election Act, there is no room for any denial of legitimacy as to the guarantee of decentralization of powers and regional autonomy itself, but a reasonable suspicion exists as to the specific legislative purpose of eliminating the political party's influence and inducing votes based on the qualifications of individual candidates in an election to an autonomous local council for the sake of the above stated purpose. The choice of whether to vote for a political party or to vote based on the judgment of particular candidates facing anelection ultimately lies with the citizens as the bearer of the sovereign-

ty, and it is not desirable in light of the principles of democracy that the legislators

replace for their own or interfere with such choiceof the citizens as the guardians of the people through legislation.

In addition, it is highly doubtful that the regulations under Article84 of the Public Officials Election Act would have any effect in achieving the legislative purpose of securing the decentralization of powers and the regional autonomy. That is, the causation is much too attenuated between the voters' knowledge of the political party endorsement or recommendation of a candidate and the hindrance upon the decentralization of powers and the regional autonomy. On the other hand, the proviso of the above provision leaves open a detourfor the voters to find out about the political party's endorsement or recommendation of a candidate by allowing the candidate to state his or her present or past political party membership and affiliation, and, there is no means to regulate such conducts as the candidate'sexpress statement in support of a particular political party, the politicalparty's express statement in support of a candidate on its own ini-

tiative, or the candidate's political and legislative activities for the political party of his or her membership and affiliation after beingelected. Under such legal circumstances as above, it is highly uncertainas well whether a mere prohibition of the candidate's informing the voters of the political party endorsement or recommendation could effectively eliminate the influence of the political party. Therefore, the appropriateness as a means of the above provision can hardly be affirmed.

Furthermore, the above provision does not limit its prohibition to specific means or method of expression with a higher pervasive effect such as a large-size wall banner, a printed election bulletin, asmall-size publication, or a hanging banner; instead, the above provi-

sion outright prohibits the conduct of expression entirely. Therefore,there is room to deem that the above provision fails to satisfy therequirement of the least restrictive means when limiting basic rights.

Most of all, it cannot be denied that Article 84 of the Public Officials Election Act encompasses multiple problems in light of the balancing between and among the conflicting legal interests. First,as reviewed previously, the above provision's contribution to the leg-

islative purpose of realizing the original goal of local self-governmentis either highly uncertain or immaterial. Also, although the above provision seems to have been designed out of consideration of theoperation of political parties excessively centered towards the parties' headquarters and of the regional structure and balance of the nation, it still cannot be discerned that the elimination of the influence ofthe political parties will contributeto the development of local self-

government. The localself-government not only functions to imple-

ment a mere neighborhood administration, but also to form politics in autonomously formulating various policies in the pertinent region concerning the allocation of values and resources within the district. In relation to such political formulating function, the political party may assume positive functions of, for example, regimenting public opinions, unearthing human resources, connecting the center and the regional district, and implementing politics of responsibility. Thisvery aspect probably explains why a prevailing majority of those advanceddemocratic nations with a long tradition of local self-gov-

ernment such as the United Kingdom, France, Germany, and Japan allow the participation of the political parties in the local elections.On the other hand, the negative effects derived from the participationof the political parties in the local elections rather result from the insufficient decentralization or democratization within the political parties. Yet, the participation of the political party in the local elections may promote the decentralization and the democratization of the political party by providing qualified human resources fromlocal areas for the political party and activating the local

organizationof the political party. Further yet, in light of the tendency of thepolitical environment in the nation toward rapid developmental changesexemplified by the relatively lessened regionalism, the entry of areform party into institutional politics, the adoption of the party-enlistedproportional representation system of one-person two-votes, and the upward bottom-to-top nomination of the party candidates by way of the poll-based competitive nomination, it is predicted that the lossfrom the elimination of the political parties will outweigh the benefitstherefrom in the future. Therefore, it is not desirable from the per-

spective of the development of the local self-government to adoptanad hocsolution of eliminating the political parties thereby blockingthepositive functions as well as the negative functions of the participationof the political parties.

On the other hand, the restriction upon the basic rights caused by the above provision is conspicuous. That is, as the above provi-

sion prohibits any and all expression of the party endorsement orrecommendation entirely, a candidate should remain silent even towardthe voters who specifically inquire into the information as to the political party endorsement or recommendation. An imprisonment for two years or less or a fine of or under ￦4,000,000 may be imposed for violation of the above provision (Article 256(1) of the Public Officials Election Act), and, further, an imposition of an imprisonment or a fine of or under ￦1,000,000 nullifies the election itself (Article 264 of the Public Officials Election Act). However, in light of the fact that most of the candidates for election to an the autonomous local council are aspiring prospective politicians wishing to enter the politics through the political party, the outright ban on the expression of political party endorsement or recommendation andthe various ensuing disadvantages are undeniably and excessively severe.

In addition, various regulations that are intended to guaranteefairness of the election such as the limitation of the electoral campaignperiod for a local council election to fourteen(14) days (Article 33(1)(iii)of the Public Officials Election Act), the prohibition of the electoral campaign prior to the designated election campaign period (Articles59 and 254(2) and (3) of the Public Officials Election Act), the prohib-

ition of the house-to-house solicitation and visit (Articles 106(1) and (3) and 255(1)(xvii) of the Public Officials Election Act), and the restriction on the election campaign through printed or paintedmaterials (Articles 64 through 66 and 255(2)(i) of the Public OfficialsElection Act), cut down the opportunities of the voters to actuallycontact the candidates for an election of the autonomous local councilmembers. Further, the voters have much difficulty analyzing and assessing the qualifications and abilities of the individual candidates, as the so-called four local elections all simultaneously take place.Thus, practically, the informationas to the political party's endorse-

ment or recommendation of a particular candidate inevitably serves as an important factor to refer to as the voters exercise their votingright. The prohibition of the political party's endorsement or recom-

mendation all together, notwithstanding the above, may mandate a blind vote while the voters are deprived of the information as to who is who and which candidate has which political tendencies, or may even have the voters give up their votes entirely. This result, from the voters' perspective, may significantly impede the voters' right to know demanded for an informed vote fully aware of the precise political identity of the candidates.

Considering the above factors in the entirety, the provision onreview here conspicuously lacks a balance between the conflicting legalinterests, as there is no reasonable proportionate relations betweenthe benefit of the public interest resulting from the prohibition of thepolitical party endorsement or recommendation and the loss therefrom.

(C) In addition to the above, Article 84 of the Public OfficialsElection Act is problematic also in light of the rule of clarity, whereasthe so-called rule of clarity has a

specifically significant meaning in the legislation that regulates the freedom of expression (See10-1 KCCR 327, 342, 95Hun-Ka16, April 30, 1998). That is, where the proviso of Article 84 of the Public Officials Election Act permits thestatement of the candidate's present or past political party member-

ship or affiliation, such statement of present or past political partymembership or affiliation is conventionally made as a means to expressthe political party's endorsement or recommendation. Actually, in manycases, the central office of a political party practically nominates a candidate by choosing a candidate for the autonomous local council member election through, for example, an internal competition in the relevant district and then giving such candidate a uniform title or office of the political party suchas the 'chair of the local self-gov-

ernment committee' for the pertinent autonomous local administrativeunit. Where there is a so-called 'internal nomination' by the above method, whether the act underlying such office or title should bedeemed as a merestatement of thecandidate's political party mem-

bership or activities or as an expression of the political party endorse-

ment or recommendation is subject to disputes. Here, neither one may serve as a satisfying answer because regarding such act as a mere statement of present or past political party membership andactivities will eviscerate the purpose of the main provision of Article84, whereas regarding such act as an expression of party endorsementor recommendation will ignore the purpose of the proviso of Article84, of the Public Officials Election Act. This may explicate the con-

tradicting decisions that, whereas the lower court found the defendantnot guilty by deeming such act as a statement of the present or pastpolitical party membership or activities, the Supreme Court foundthe defendant guilty by deeming such act as an expression of politicalparty endorsement or recommendation (SeeSupreme Court Decision98Do3648 delivered on January 15, 1999 (Gong 1999(Vol.I), 326); SupremeCourt Decision 2000Do734 delivered on May 30, 2000 (Gong 2000, 1584), etc.).

Likewise, Article 84 of the Public Official Election Act, due to its main provision and proviso with overlapping areas of regulation, causes unpredictability on the part of the candidates in the process of election for the members of the autonomous local council as to how much they are allowed to express the information concerningthe political party of their membership and affiliation in their electoralcampaign process and even provides an excuse for the arbitrary exer-

cise of the state's authority to penalize particular conduct in violationof the rule of clarity.

(D)Therefore, Article 84 of the PublicOfficial Election Act exces-

sively infringes upon the freedom of political expression on the part of the candidates in violation of the principle of proportionality, foran uncertain legislative purpose, in a method that lacks both efficiencyand clarity.

(2) Whether Article 84 violates the principle of equality

The principle of equality prohibits the legislators from both arbi-

trarily treating essentially identical matters differently and arbitrarilytreating essentially different matters identically. Therefore, the legis-

lators impede the right to equality should the legislators treat two of the factual relations differently where there is no difference that may justify a different treatment between the two factual relationsunder comparison. However, when two of the factual relations undercomparison are not completely identical in every aspect but identicalonly in certain aspects, one of the issues is which elements will serveas determinative factors in judging whether or not such of two factualrelations under comparison will be deemed as legally identical or not.A judgment upon whether or not two of the factual relations areessentially identical normally depends on the meaning and the purposeof the

relevant provision (See8-2 KCCR 680, 701, 96Hun-Ka18, December 26, 1996).

In the instant case, among four different types of local elections, Article 84 singles out the election of the autonomous local council members and prohibits only the candidates for such elections fromexpressly stating the party endorsement or recommendation. However, if the meaning and the purpose of the above provision is to establishdecentralization of powers and regional autonomy by eliminating the influence of the political parties and promoting an election based onthe qualifications of the individual candidates, the same may commonlybe applicable to the elections for the members of the regional locallegislature, for the head of the regional local government, and the headof the autonomous local government, and not only to the election forthe members of the autonomous local legislatures or councils. There-

fore, the election of the autonomous local council members and the rest of the three other local elections should be deemed as legally identical factual relations.

Consideration of any fundamental differences between the electionof the members of autonomous local councils and the rest of the local elections fails to find any ground to treat these elections differently. First, between the regional local government and the autonomous local government, there is no ground for treating these two legally differently, as the only difference between these two is they belong to different kinds of local self-government units and there is no es-

sential difference in the self-governing function of decentralization.

Furthermore, there is no reasonable ground for eliminating the influence of the political parties in the case of the election of the autonomous local council members as opposed to the election of thehead of the autonomous local government. Rather, should any influenceof the political parties be removed from various institutions of auton-

omous local government, it should be the head of the autonomous local government who is in charge of executive affairs, rather than the autonomous local council, because the chief executive officer ofthe autonomous local governmentis in a position to direct and super-

vise most of the public officials belonging to the same autonomouslocal government, to compile and implement the budget, and to pursueand execute regional businessesand current matters considerably af-

fecting national level elections such as the presidential election or the general election of the members of the National Assembly. The fact that various injustices actually occur relating to the election of the head of the local government such as donations for the party'snomination reveals this aspect. Also, in light of the fundamental ideasof local self-government of the realization of checks and balances atthe local level, it is not reasonable to permita political-party recom-

mended candidate in the election for the head in the autonomous local government and to not permit a candidate's express statement of political party endorsement or recommendation in the election to an autonomous local council.

Then, Article 84 of the Public Officials Election Act is in violationof the principle of equality as this provision singles out and disfavorscandidates for election to the autonomous local councils compared withthe candidates in other local elections with no reasonable ground for such different treatment.

(3) Sub-conclusion

The "candidate for election to an autonomousKu/Shi/Kuncouncil"part of Article 84 of the Public Officials Election Act is unconstitu-

tional, as such part infringes upon such candidate's freedom of politicalexpression and violates the principle of equality.

5. Conclusion

Therefore, it is so decided and ordered, that the request for constitutional review of Article 47(1) of the Public Officials ElectionAct is dismissed and that the "candidate for election to an autonomousKu/Shi/Kuncouncil" part of Article 84 of the Public Officials ElectionAct is hereby declared unconstitutional.

The previous decision of the Constitutional Court, 99Hun-Ba28, November 25, 1999, which held that the "candidate for election to an autonomousKu/Shi/Kuncouncil" part of Article 84 of the Public Officials Election Act was not unconstitutional, is hereby modified to the extent that such previous decision is inconsistent with the holding of the instant case.

The holding of the instant case is a unanimous decision by all of the participating Justices, with the exception of the dissentingopinion of Justices Han Dae-hyun, Ha Kyung-chull, and Kim Kyung-ilindicated below in Paragraph 6.

6. Dissenting Opinion of Justices Han Dae-hyun,

Ha Kyung-chull, and Kim Kyung-il

In a previous case of 99Hun-Ba28, November 25, 1999, the Consti-

tutional Court held that the "candidate for election to an autonomousKu/Shi/Kuncouncil" part of Article 84 of the Public Officials ElectionAct was not unconstitutional; the summary of the decision therein is as follows:

『This provision prohibits the express statement of the politicalparty endorsement or recommendation solely by the candidate for elec-

tion to an autonomous local council among all of the elections regulatedby the law. The question of enacting the above content falls withinthe boundary of legislative discretiondrawn by contemplating the en-

tirety of the factors including theConstitution's institutional guaran-

tee of the local self-government and the perception of the citizenstoward the nation's political culture and local self-government. Suchlegislative formation should not be subject to a holding of unconsti-

tutionality, in its very nature, unless there is an abuse of discretion deviating from its limits.

Furthermore, in determining whether or not this provision exceededthe limits of legislative formation, the reality of the local self-govern-

ment system and its special nature should first be understood as a precondition of such determination.

The constitutional guarantee of the local self-government systemcan be epitomized as the realization of self-government by the residentsas the bearers of the sovereignty in that particular region arising out of the fundamental principle of people's sovereignty. Thus, it is constitutionally requested that the very core of the essential contentof the local self-government should be protected against the intrusionby the central government including its legislative activities. Harmonyis crucial in the vertical separation of powers between the nationaland the local governments, and underno circumstances may any im-

pairment by the national government or by legislation of the essenceof the local self-government be permitted in the process of promotingsuch harmony.

Particularly, we should take into consideration the political realityof the nation that has not beenable to overcome the problem of re-

gionalism, the undemocratic nature of the political party administration, the electoral climate dominated by the regional relations, blood ties, and school connections, and, further, the lack of experience of localself-government. Should we permit the participation of the candidatesrecommended by a particular political party in the election for the members

of the autonomous local council as in the rest of elections for public officials, not considering the above factors, the political party will directly and indirectly influence the political activities of the elected candidates as well as the outcome of the election forsuch particular candidate. This means that the decision of an auton-

omous local council that should autonomously operate to reflect theparticular circumstances of theregion will change subject to the deci-

sions of the political parties. When a political party's decisionsdetermine an autonomous local council's move, such autonomous localcouncil has already lost its original purpose and function except for its name alone.

Also, should we permit the participation in the election of the autonomous council members of the candidates recommended by thepolitical party without anyrestrictions, the candidates' party member-

ship or the policy directions in line with the political party will serveas a more important factor in the voting decision rather than theabilities and the qualifications of the individual candidates. However, as an autonomous local council is a deliberative institution for the sake of independently resolving the issues concerning the economy,the society, and the culture of the particular region rather than thoseissues at the national level, constituting the autonomous local councilwith those individuals equipped with ability and professional expertise required for the particular region as much as possible than with thoserecommended by the political parties colored by the national politics of political party's policy directives at the national level conforms more to the essence of the local self-government pursuing the sepa-

ration and the decentralization of powers.

We hereby agree with the importance ofthe purpose of this pro-

vision in that this provision is part of legislation indispensable to the realization of undiluted local self-government that is suitable for the reality of the particular region unaffected by the political party'sinfluence upon the formation and the activities of the autonomous localcouncil. Prohibiting the candidate for election to an autonomouslocal council from expressly stating the political party's endorsement or recommendation is the necessary and least restrictive means that is both appropriate and effective adopted to achieve such legislativepurpose. Although this provision prohibits the candidates from directlyproviding voters with information concerning the political ideologiesthey seek or the political party of their membership thereby restrictingthe voters' opportunity to obtain such information, this provision leavesroom for the candidates to at least indirectly state and disclose their political ideologies and the political party membership by way of the statement of the candidates' presentor past political party member-

ship or related activities (the proviso of Article 84 of the Public Officials Election Act), thereby satisfying the principle of the leastrestrictive means. The advantage of the institutional guarantee of thelocal self-government through prohibitions on the candidates' expressionof the political party endorsement or recommendation outweighs anyloss from the infringement upon the candidates' right to serve in thepublic office and the freedom of electoral campaign, therefore the pro-

vision on review also satisfies therequired balance between two con-

flicting legal interests. Therefore, this provision is not in violationof the principle of the prohibition against excessive legislation, and isthus not unconstitutionally infringe upon the petitioner's right to servein public office (the right to be elected) or freedom of electoral cam-

paign.

This provision that treats the candidates for election to an auton-

omous local council differently in the political area of life compared with the rest of the elections to elect public officials by prohibiting the former from expressly stating the political party endorsement orrecommendation is indispensable to thelegislativepurpose ofinstitu-

tional guarantee of the local self-government pursued under the Con-

stitution. Also, as such, this provision is not in violation of the principle of equality as it adopts the necessary, least restrictive, and inevitable means to achieve the legislative purpose.』

We respectfully disagree with the opinion of the Court as we believe that the holding of the above 99Hun-Ba28 decision remains valid and appropriate and that there has been neither any change in circumstances nor necessity to demand a different conclusion.

Justices Yun Young-chul (Presiding Justice), Han Dae-hyun, Ha Kyung-chull, Kim Young-il, Kwon Seong, Kim Hyo-jong, Kim Kyung-il, Song In-jun (Assigned Justice), and Choo Sun-hoe

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Aftermath of the Case2)

The Constitutional Court Act provides that, should a provisionimposing criminal punishment be held unconstitutional, such provisionshall lose its effect retroactively, and allows a request for retrial of the final judgment of conviction pursuant to such provision. As of March 31, 2004, there have been eighteen(18) requests for retrial, wherein relief is sought and obtained for those criminally punished in the past on the ground of expressly stating the political party endorsement or recommendation as the candidates for election to an autonomous local council.