[1] Whether Article 17 of the Addenda to the Public Official Election and Prevention of Unlawful Election Act is unconstitutional beyond the limits of reasonable discretion on legislative formation (negative)

[2] Whether Article 230 (1) 4 and Article 135 (3) of the former Public Official Election and Prevention of Unlawful Election Act are unconstitutional (negative)

[3] Whether Article 255 (1) 13 and Article 89 (1) of the former Public Official Election and Prevention of Unlawful Election Act are unconstitutional (negative)

[4] Whether Article 255 (2) 5 and Article 93 (1) of the former Public Official Election and Prevention of Unlawful Election Act are unconstitutional (negative)

[1] Article 17 of the Addenda to the Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of March 12, 2004) / [2] Articles 135 (3) and 230 (1) 4 of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of March 12, 2004) / [3] Articles 89 (1) and 255 (1) 13 of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of March 12, 2004) / [4] Articles 93 (1) and 255 (2) 5 of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of March 12, 2004)

[1] The Constitutional Court en banc Order 95Hun-Ma196 decided Dec. 28, 1995 (Hun-Gong13, 160) en banc Order 97Hun-Ba65 decided Nov. 26, 1998 (Hun-Gong31, 39) / [2] the Constitutional Court en banc Order 2001Hun-Ba26 decided Apr. 25, 2002 (Hun-Ba68, 387)/ [3/4] the Constitutional Court en banc Order 200Hun-Ma193 decided Oct. 25, 200 (Hun-Gong62, 1066)/ [4] Supreme Court Decision 2004Do4045 decided Nov. 25, 2004

Defendant

Defendant

Attorney Seo-type et al.

The request for adjudication on constitutionality is dismissed.

1. As to Article 17 of the Addenda to the Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of March 12, 2004; hereinafter referred to as the "Public Official Election Act").

Article 17 of the Addenda to the Public Election Act provides that "in the application of the penal provisions to acts before the enforcement of this Act, the previous provisions shall apply." The application of penal provisions to acts before the amendment of the Public Election Act shall be governed by the provisions of the Public Election Act before the amendment, even if such acts are not punishable after the amendment. The obligation of legislators to ensure that the so-called "opportun retroactive legislation shall be made in the case where the amended new law is favorable to the persons subject to application," is not derived from the principles of the Constitution, and therefore, whether such retroactive legislation is to be made is a matter of legislative discretion and the decision is primarily entrusted to the legislative body. Therefore, in determining whether such timely retroactive legislation is to be made, the legislative body is free to make a broad legislative formation, unlike the case where the rights of the people are restricted or new obligations are imposed (see Constitutional Court en banc Decision 95Hun-Ma196, Dec. 28, 1995).

Furthermore, legislators may decide whether to enact a mutually advantageous retroactive legislation in consideration of the legislative purpose, social situation, citizens’ legal sentiment, and the reason or circumstances of the amendment of the law. Such decision should be respected. The decision cannot be deemed to violate the Constitution unless it is remarkably unreasonable and unfair beyond the scope of reasonable discretion (see Constitutional Court en banc Decision 97Hun-Ba65, Nov. 26, 1998).

In the case of this case, the amendment of the Public Election Act aims to advance our political culture by establishing and supplementing various institutional devices so that elections can be fairly held in accordance with the free will of the people and democratic procedures, expanding election campaigns through various media, such as newspapers, broadcasting, instead of closing the joint speech meeting and campaign speech meeting by political parties, candidates, etc., and creating a new election climate, such as innovation of high-cost constituency and transparency in the disbursement of election expenses, etc. In light of all the circumstances such as the reason for and content of the amendment of this Act, transparent and fair election, and legal sentiment of the people, etc., the amendment of the Public Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of Mar. 12, 2004; hereinafter referred to as the "former Public Election Act") cannot be deemed to violate the reasonable limitation of legislative discretion on the formation of the new public election law, and thus, it cannot be deemed to violate Article 11(2)15(2) of the Constitution and Article 15(2) of the Constitution.

2. As to the recommendation of the unconstitutionality of Article 230(1)4 and Article 135(3) of the former Official Election Act

Articles 230(1)4 and 135(3) of the former Public Election Act, except for cases where allowances, actual expenses, and other benefits are provided pursuant to the former Public Election Act, regardless of the pretext of the provision of allowances, actual expenses, compensation for volunteer service, etc., shall be punished for the act of offering, ordering, recommending, arranging, demanding or receiving money, goods, or other benefits in connection with the election campaign. If an act of offering benefits in connection with the election campaign is permitted, it is difficult to prevent an election campaign due to excessive election campaign, and if benefits are provided to the election campaignmen, it is difficult to conduct an election campaign for the purpose of the benefit of the election campaignmen, and ultimately, it is difficult to conduct an election campaign, and if punishment is imposed on the election campaign-related benefit provision within a certain period, it is difficult to punish the act of offering benefits by avoiding such period, and it is difficult to prevent an election campaign and to expect a fair election.

Therefore, the restriction under the above legal provision not only has the meaning of an institutional device to guarantee the freedom and fairness of election campaign, but also has its restriction on election campaign under the premise that the provision of benefits related to election campaign is prohibited in order to prevent harm, and it is merely a partial restriction on election campaign, not a full-scale restriction on election campaign methods, but only limited to the provision of benefits, such as money and valuables, in relation to election campaign. Therefore, it cannot be readily concluded that the freedom of election campaign at all is unreasonable or that it should be punished (see Constitutional Court en banc Decision 201Hun-Ba26, Apr. 25, 2002).

Therefore, the foregoing provision shall not be deemed to violate the provisions of Article 10(human dignity and the guarantee of fundamental human rights), Article 11 (Equality and Denial of Special Ranks), Article 15 (Right of Vocational Selection), Article 18 (Right of Communication), Article 24 (Right of Election), Article 32 (1) (Right of Employment), and Article 37 (Respect of Freedom and Freedom of People and Restriction) of the Constitution.

3. As to the recommendation of the unconstitutionality of Article 255(1)13 and Article 89 of the former Official Election Act

Articles 25(1)13 and 89 of the former Public Election Act, other than the election campaign office or election campaign liaison office as provided in the former Public Election Act, are subject to the punishment of acts of using similar institutions, organizations, organizations, or facilities on behalf of a candidate (including a person intending to become a candidate), regardless of their names. This is a provision for ensuring the fairness of election by preventing excessive competition and waste that may arise from difficult establishment of election campaign organizations other than the statutory election campaign office and election campaign liaison office, and by guaranteeing the equal opportunity for election campaign among candidates. The proviso of Article 255(1)13 and 89 of the former Public Election Act permits exceptions to the establishment of one election campaign organization at the offices of the central party, district, etc. of a political party, so that the freedom of election campaign is relatively limited compared to the candidate (see, e.g., Constitutional Court en banc Decision 200Hun-Ga10, supra). However, this exceptional provision is not suitable to protect the freedom of free election (see, e.g., Supreme Court en banc Decision 2010Hun-Ga15).

4. As to the recommendation on the unconstitutionality of Article 255(2)5 and Article 93(1) of the former Official Election Act

Article 25(2)5 and Article 93(1) of the former Election Act are subject to punishment for acts such as distributing or posting documents and drawings by unlawful means. Inasmuch as restricting acts prescribed therein in relation to this election under Article 93(1) of the former Election Act is a objective limitation to ensure the freedom and fairness of election and to ensure the common interests of all the electors including electors and citizens, the legitimacy of legislative purpose is recognized. The restriction has the meaning as an institutional device to guarantee the freedom and fairness of election, in addition to prohibiting such acts for a certain period, it is difficult to present an effective means other than to prevent harm, and in particular, it is deemed reasonable or appropriate in that such restriction takes place, and such restriction is not a necessary and minimum measure for securing the fairness of election, and it does not violate the principle of minimum infringement, and it does not constitute a violation of the freedom of election campaign or the principle of equal rights of the Constitutional Court (see Article 90(1)4 of the former Election Act, which does not violate the Constitution or the principle of equal rights of the Constitutional Court.

In the same purport, the foregoing provision shall not be deemed to be in violation of the provisions of Articles 10 (Human Dignity and Guarantee of Fundamental Human Rights), 11 (Equality and Denial of Special Ranks), 15 (Freedom of Vocational Selection), 18 (Right of Communication), 21 (Right of Communication), 24 (Right of Representation, Right of Representation), 25 (Right of Representation), 32 (1) (Right of Labor), 37 (Right of Freedom and Respect of Freedom and Restriction of People's Rights) of the Constitution, etc.

5. Therefore, the motion for adjudication on the unconstitutionality of this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)