[1] Whether it is necessary for media organizations to set a certain limitation on the press's discretion in holding discussions to invite candidates, etc. in accordance with Article 82 of the Public Official Election Act (affirmative) and the criteria for determining the scope (affirmative)

[2] The case holding that the press, when holding the 17th alternative joint debate, limited the target to candidates who are not less than average support rate of 10% as a result of the recent public opinion poll, exceeded the limitation of discretion because it is difficult to accept the legitimacy of the limited radio wave resources and discussions, considering the efficiency of the limited radio wave resources and discussions

[1] In holding discussions to invite candidates under Article 82 of the Public Official Election Act, there is room to view that the press has broad discretion not only in the frequency, form, and content composition, but also in selecting candidates. It seems legitimate to restrict candidates who are likely to be elected in order to maximize the effectiveness of the broadcasting debate. Meanwhile, the broadcasting debate is an efficient and important election campaign that makes it possible for candidates to have broad access to the broad range of voters to present their pledges, political views, vision, etc., and to appeal the support, and to display their advantages by emphasizing the discrimination with the other candidates, and it is very important that the media has become able to individually select candidates by comparing and assessing the candidate's policies, political views, etc. as well as in the process of debate, its importance should be determined in light of the influence of the broadcasting debate in light of the purpose of Article 82 of the Public Official Election Act at the same time, its importance should be determined in consideration of the situation of the media's debate and its concrete influence, its importance should be determined in consideration of the contents and influence of the debate.

[2] In holding the 17th presidential joint debate, the case holding that the press limited the target to candidates who are not less than average support rate of 10% as a result of the recent public opinion poll, which goes beyond the limit of discretion because it is difficult to accept the legitimacy of the limited spectrum resources and discussions, even if considering the efficiency of the limited spectrum resources and discussions

[1] Articles 82 and 82-2 of the Public Official Election Act, Article 45 of the Regulations on the Management of Public Official Election / [2] Articles 82 and 82-2 of the Public Official Election Act, Article 45 of the Rules on the Management of Public Official Election

Freeboard (Law Firm Chang, et al., Counsel for the defendant-appellant)

Korea Broadcasting System and one other (Law Firm Jeongse, Attorneys Han Sang-han et al., Counsel for the plaintiff-appellant)

1. The respondent may not hold a joint forum for the 17th presidential candidate of the respondent scheduled to take place on December 1, 2007 and on the 2th of the same month, with the exception of the applicant.

2. Litigation costs shall be borne by the respondent.

The same shall apply to the order.

1. Basic facts

In full view of the purport of the entire examination of the records of this case, the following facts are substantiated.

A. On November 25, 2007, the applicant is a candidate for the 17th presidential election of the creative Korea Party, who completed the registration of the candidate for the presidential election with the National Election Commission on November 25, 2007. The respondent is a terrestrial broadcasting business operator established as a national key broadcasting under Article 43 of the Broadcasting Act, and the respondent cultural broadcasting company is a terrestrial broadcasting business operator established under Article 9 of the Broadcasting Act

B. On December 19, 2007, the Respondent would take the 17th presidential election (hereinafter “the Respondent”), and the Respondent would jointly hold a joint forum on the candidates’ joint forum (hereinafter “instant debate”) on two occasions, including December 1, 2007 and December 2, 2007, and report it to the Respondent.

C. The respondent set the subject of the instant debate as the result of the Central Press Company (comprehensive daily newspapers and terrestrial 3 companies), published within three weeks from the date prior to the date of candidate registration (from November 3, 2007 to November 24, 2007), that “the average support rate of three surveys in the recent order published, is at least 10%,” and the respondent sent a letter of invitation to only three persons who meet the above requirements among the alternative candidate registration holders, and the applicant did not invite the applicant on the ground that he does not meet the above requirements.

(d) Relevant regulations: as shown in the Appendix.

2. The parties' assertion

The applicant has a duty to guarantee the fairness of broadcasting in an election where the press voluntarily holds a debate about the invitation of candidates pursuant to Article 82 of the Public Official Election Act, but in light of the legislative intent of the Public Official Election Act, the criteria for the invitation of candidates are left to the press at the discretion of the press. However, in light of the legislative intent of the Public Official Election Act, the discretion should not be free, but at the discretion, comply with the criteria for the invitation of candidates as provided by Article 82-2 of the Public Official Election Act. In particular, the respondent is obliged to ensure the fairness of broadcasting in an election where the highest person in charge of state affairs is elected through strict interpretation and application of the Public Official Election Act as a public broadcast. Therefore, the respondent's limit of the target of invitation to at least 10% without following the provision of Article 82-2 (4) 1 (c) of the Public Official Election Act in holding the debate in this case is contrary to the principle of equality under the Constitution, and the applicant's eligibility for election and the right of fair debate as the President, and the purport of the issuance of provisional disposition.

In this regard, the respondent asserts that the autonomy of the broadcasting company is guaranteed to the debate of the invitation of the candidate supervised by the broadcasting company, as long as the fairness of the debate is not seriously undermined, the discretion of the broadcasting company is broadly recognized in the method of holding the debate and the selection of the invitation target. The debate in this case is prepared to provide an opportunity for a serious verification of the candidate by examining the purport of stipulating the debate of the press separately from the debate of the public election law's supervision. Therefore, limiting the target of invitation to 10% or more is reasonable discrimination and it is not a deviation or abuse of discretionary power.

3. Determination

In addition to the interview and debate in charge of the Election Debate Committee (hereinafter referred to as the " the debate in charge of the debate committee"), the Public Official Election Act provides for an interview and debate for the invitation of candidates, etc. of the press (hereinafter referred to as the " the debate in charge of the debate committee"), and stipulates the requirements for the persons subject to the invitation. On the other hand, in the debate in charge of the press committee, the debate requires the press to voluntarily hold and report taking into account the time of the debate, the space of the newspaper, etc., and does not mention any person subject to the invitation. Accordingly, in holding the debate, there is room to view that not only the frequency, form, and content of the debate but also broad discretion is recognized in the selection of the persons subject to the invitation.

In addition, it is necessary to invite only a number of appropriate candidates to maximize the effectiveness of the broadcasting debate by allowing each candidate to have a profound discussion on the policies, morality, political ideology, and philosophy of government. Therefore, restricting the target of the debate in this case seems to be justifiable, and the respondent seems to limit the target of the debate in this respect from this point of view.

However, a broadcast debate is an efficient and important election campaign that makes it possible for a candidate to have his or her own advantage by approaching a wide range of voters at the same time by presenting his or her campaign promises, political views, vision, etc., appealing support and emphasizing the differentiatedness with the other candidate. Since a candidate's policy, political views, etc. as well as his or her ability to hear and evaluate the candidate's policies and political views as well as to observe the debate process and select a candidate for support by comparing and evaluating the candidate in one place, its importance in election is in fact enormous. Therefore, in light of the importance of the broadcast debate, the discretion of the media in the case of the debate in charge of the press should be set up a certain limit, and its limit should be determined individually in consideration of the political reality of Korea, the nature of the media in charge of the debate, the point at which the debate is held, and the influence or ripple effect of the debate, etc. in addition to the purport of Article 82-2 (4) of the Public Official Election Act.

Based on this, the respondent's establishment of the standards for recommending candidates at least 10% of the average rate of public opinion pollss within its discretionary scope, ① considering the political climate of the Republic of Korea that adopts democracy, the former Public Official Election and Prevention of Unlawful Election Act (Act No. 5149 of February 6, 1996, Act No. 5262 of January 13, 197) is different from those of the same Act (Act No. 7189 of March 12, 2004; the current Public Official Election Act) that the candidate's new opportunity to participate in the election campaign is not likely to have any significant influence on the candidate's election campaign, and the candidate's new opportunity to participate in the election campaign is not clearly defined in the public opinion poll. ② The public opinion meeting provided for in Article 82-2 of the Public Official Election Act, which is likely to have any significant influence on the candidate's new opportunity to participate in the election campaign.

Therefore, an applicant may seek the prohibition of holding the debate of this case that excluded the applicant against the respondent, and further, on the record, the respondent clearly expresses his/her intention to hold the debate of this case without excluding the applicant, and it is apparent that the applicant suffers from irrecoverable damage due to the failure to attend the debate of this case. As such, the provisional disposition is clearly explained that the necessity of preserving the debate of this case other than the applicant is also substantiated.

4. Conclusion

If so, all applications filed against the respondent are justified because the need for the right to preserve and the need for the preservation has been substantiated.

Judges Park Jong-Un (Presiding Judge)