공직선거법상 탈법방법에 의한 광고의 배부 금지: 헌법재판소 결정에 대한 비판을 중심으로

Election should be performed fairly through democratic process, and laws governing elections should prohibit their unfair campaigns. Fairness doctrine that is embodied into anti-corruption is the highest regulatory purpose of election laws because it reinforces the constitution’s of spirit of enhancing public interests and protecting individual rights. However, the concept of fairness bears a problem of vagueness in itself, and voters right to participate in an election process can be unreasonably abridged by this problem. In addition, the result of an election can be influenced by this limited voter’s rights. This is not compatible with the constitution’s intention promoting the people’s political rights. The current election laws in Korea, however, concentrate regulations only under the pretext of fairness doctrine enough not to fulfill the constitution’s foundational purpose of ‘electing proper representatives based on the people’s voluntary intention and participation’. By the same token, a recent decision of the Constitutional Court on election law provisions should be criticized. It did not reflect on the social changes and the developments of voter’s awareness. Besides, it sticked to an old-fashioned and regulation-oriented interpretation on the election laws. This article argues that the laws should open opportunities on the voter’s participation in the election process.