선거여론조사의 결과공표금지규정에 대한 헌법적 고찰 ― 알 권리의 침해를 중심으로 ―

According to Clause 1, Article 108 of the election law for the public position, the results from the opinion survey on the election cannot be publically announced until 6 days before the electing date in our country at present. There is the problem whether the same provision is the unconstitutional provision infringing the basic right like the right to know, etc as reflecting to the principle of excess prohibition or not. The following is the reviews on that point. Firstly although the true intention of the nations may be distorted according to the phenomenon such as, what is called, bandwagon effect or underdog effect is occurred before the electing date from the public announcement of the results from opinion survey before the electing date by the same provision, these two kinds of effects are nothing but one hypothesis not commonly supported and, on the contrary, may cause the matador phenomenon. Accordingly, to prohibit the public announcement of the results from the opinion survey for election to exclude the possibility to distort the true intention of the nation by the public announcement of the results from the opinion survey for election according to the same provision itself is thought to be not resonable. Nextly, reflecting the same provision to the principle of excess prohibition, it is thought to be unconstitutional from the following reasons. First, if the public announcement of the results from the opinion survey for election intentionally distorted is restrained by the judicial punishment, the public announcement of the results from opinion survey related to the election, etc is controlled as arranging the inspecting or the observing institute and the right to rapidly require the refuting report by the request of the candidate for the concerned election is accepted when the refutation against the result from opinion survey is wanted during the period of election, the fairness of election will be ensured. Accordingly, to wholly prohibit the public announcement of the opinion survey for election from the 6th day of the election is thought to be in breach of the adaptability of means. Second, the same provision prohibits the public announcement of the result from the opinion survey for election from 6 days before the election. By the way, the prohibiting period will be said to be against the principle of the minimal infringement due that it infringes the right to know if the present highly advanced level of political awareness of voters in our country is considered and it is the long period compared to the foreign legislation on the prohibition of the public announcement of the result from the opinion survey for election. Third, as the degree of the infringement of legal benefits like the right to know that the voters should be ensured the sufficient and sound opportunity forming the public opinion before the election as the voters know the various and right information on the election to the maximum in the election, etc is larger than the protective legal benefit, securing the fairness of election obtained by the prohibition of the public announcement of the result from the opinion survey for election based on the same provision. Accordingly, the same provision will be arranged to remove the prohibiting provision away like The U.S. etc from the very first or in order for the right to know, etc to be protected to the maximum in the election as reducing the prohibiting period much more than the present like 2 days before the election of the France.