선거과정과 헌법재판소 - 선거운동 관련 판례의 분석 -

Election in a liberal-democratic system should be a competitive one, which has institutionally the possibility of choice and the freedom to elect. Competitive election enables competition among candidates and voters' control over them. But, in reality, due to the imperfection of information about candidates and the insufficient capability of voter's recognition, political process is easily monopolized by political powers. Moreover, the election process itself is, by and large, undifferentiated. It, therefore, must be designed and made up for more political competitiveness. The legislature and the court should bear it in mind. This paper aims to inquire into how the Constitutional Court(hereafter "the Court") has played her roles bestowed by the Constitution for two decades, analyzing many cases on election campaign. The Court has at least three functions: Clarifying the meaning of election laws, Counselling the amendment of them, Clearing the channel of political change. In deference to the legislative discretion of the National Assembly, the Court has hesitated to declare unconstitutionality in some cases on election law. While having clarified the meaning of some ambiguous provisions, she has counselled the National Assembly to amend them directly or indirectly. But her job of clearing the channel of political change, to remove barriers to greater political equality, has not been accomplished sufficiently. The writer believes that of most importance are the conviction of the above functions based on the Constitution, the logical reasoning for more political competition, and voters' keen consciousness of unconstitutionality of electoral process for the Court to carry out successfully her duties in the democratic system.