선거운동의 자유와 헌법 제116조 제1항

Management of fair election is as much valuable as freedom of election campaigns under the Korean Constitution. The Korean Constitution is unique in terms of having a chapter named election management. Article 114 section 1 of the Korean Constitution stipulates the establishment of election commissions for the purpose of management of fair elections. Furthermore, according to article 116 section 1, election campaigns shall be conducted under the management of the election commissions at each level within the limit specifically set by Act and with guarantees of equal opportunity. Freedom of election campaigns will be restricted to secure fairness in election campaigns. In my opinion, it is a substantially harmonized way that, though free election campaigns should be fully guaranteed when the election day is far away, management of fair elections is getting more important as the election day is getting closer. The most convincing rationale for protecting freedom of expression, the truth seeking rationale in a marketplace of ideas, supports my argument. A few days close to the election day are not enough for the truth to prevail through competition. The article 116 section 1 of the Korean Constitution, which seems to be infringing free election campaigns can be justified as such. My opinion leads to a conclusion that freedom of election campaigns during election period is not protected by the article 21 of the Korean Constitution, freedom of expression clause, but by the article 116 section 1. The legislative may enact an Act on election campaigns to ensure fairness according to the article 116 section 1 and the rational based test, not the strict scrutiny test will be applieder the article 116 section 1, Public Official Election Act cannot be constitutionally justified. For the Act restricts not only election campaigns during election period but also political speech before election period.