자유로운 선거와 공정한 선거–공직선거법상 여론조사 결과 공표 금지를 중심으로

The election is a process of achieving a successful representative democracy by the political expressions of the sovereign people. In this process, the freedom of political expression should be guaranteed and all procedures must be managed fairly. However, an ideal goal of a free and fair election often contradicts. Therefore, the laws related to the electoral system are decided after considerations of the balance between the public’s political experience and the capacities. Our electoral laws were focused on the fairness of the election rather than the freedom of election. But if the constitutional meaning that the electoral system has is the regular operation of the representative democracy, this is only possible when the freedom of expression is provided. Also, it is evident that for the freedom of expression, satisfying the right to know of the voters by supplying them with consistent, precise information is significant. Despite this importance, the current Public Official Election Act prohibits the publication of the poll results, which is a piece of fundamental information in an election. The reason for this is to prevent the inaccurate or biased polls from negatively affecting the voters. However, since when this prohibition was introduced in 1992, through several amendments, our Public Official Election Act provides objectivity and reliability by laws such as demanding the registration of investigation agencies, observance duties, etc. to allow us to have an accurate and fair election polling. In other words, the election environments changed from the past when it was necessary to ban the publication of the poll results. Instead, the fairness of the election might be invaded by the restriction, which we deemed necessary. It is controversial whether the voters have freedom of election in the storm of fake news. Also, it is questioned that is election really managed fairly between the voters and political parties, while the information is not provided fairly. This is because voters are not supplied with essential information, the poll results. Relating to other countries, indicating the so-called experienced and people with high political capabilities, it is noteworthy that they do not restrict the release of poll results, or publish them after an extremely short period. Therefore, we must abolish this ‘ban’ to achieve a free and fair election, the representative democracy where the political intentions of people are fully reflected, by guaranteeing the public with the right to know for freedom of expression.