선거운동의 자유의 보장체계에 관한 소고 - 헌법적 근거와 보호영역을 중심으로 -

This paper examines issues related to the guarantee system of fundamental rights in order to protect freedom of election campaign strongly. The Public Official Election Act places a wide range of restrictions on the overall aspects of election campaigns, such as the concept of election campaigns, the prohibition of pre-election campaigns, the elements of election campaigns, and the methods of election campaigns. Although various criticisms have been raised about the regulation of such campaigns, the Constitutional Court generally hold many of them constitutional. For this reason, I reviewed the constitutional grounds of freedom of election campaign and proceeded with the following discussion. First, in relation to the protection area of ​​the campaign, in principle, it is necessary to understand the concept of election campaign widely in order to guarantee freedom of election campaign. However, the concept of “election campaign” in the election act turns self-contradictory because the wide regulation of the act forced the concept to be interpreted narrowly to protect the freedom. Therefore, it is necessary to redefine the concept of ‘election campaign’ in freedom of election campaign. Second, in relation to the criteria for judging the freedom of election campaign, the Constitutional Court ruled that the constitutional values ​​of “freedom of election campaign” and “fairness of election” as equivalent constitutional values and there is a rationale respecting the legislative power on the basis of the fairness of the election. However, Article 116 of the Constitution mandates that the law reserves only equal opportunities, and considering that this provision can be interpreted specifically as requiring equality, the legislative power need to be construed as rather reduced. The freedom of election means not only to exercise voting rights but also to ensure that the people can participate in the election process in order to implement the principle of national sovereignty and democratic principles, and the freedom of political expression. It should be reflected in the examination criteria because it is fundamental right.