선거운동에 관한 국회 입법의 평가와 과제

Abstract

The freedom of election campaigning serves as a means for free elections, represents the freedom of political expression, and signifies the realization of the right to participate in politics. In this paper, amid the inauguration of the 22nd National Assembly, we evaluate the amendments to the “Public Official Election Act” by the 21st National Assembly, focusing on election campaigning, and propose legislative tasks for the 22nd National Assembly. The evaluation is based on the decisions of the Constitutional Court during the term of the 21st National Assembly, which ruled on multiple occasions that certain regulations related to election campaigning in the “Public Official Election Act” were unconstitutional or incompatible with the constitution. The content of the amended “Public Official Election Act” by the 21st National Assembly was analyzed based on these decisions. The decisions of the Constitutional Court appear to clarify the intended constitutional significance of the freedom of election campaigning, aiming to grant a broader scope of freedom to the citizens. Despite this intent expressed by the Constitutional Court, the “Public Official Election Act” revised by the 21st National Assembly does not properly reflect the spirit of the Court's decisions. The 22nd National Assembly has a duty to pay more attention and properly amend the “Public Official Election Act.” Evaluating the amendments related to election campaigning in the “Public Official Election Act” by the 21st National Assembly, despite the Constitutional Court's decisions specifying legislative deadlines to address unconstitutional discrepancies in regulations such as campaign restrictions using armbands and installation bans, the passed deadlines led to a one-month legislative gap. The regulations on installation bans and the distribution and posting of documents and paintings through illegal methods were only minimally revised by shortening the restriction periods, failing to eliminate the unconstitutional nature of broad and extensive restrictions as pointed out by the Constitutional Court. The limits on various gatherings were only slightly adjusted by introducing personnel restrictions, not reflecting the decisions' intent at all. Thus, the 22nd National Assembly should initially amend the “Public Official Election Act” in detail, in line with the decisions of the Constitutional Court. More fundamentally, considering the constitutional significance of election campaigning, it is necessary to redefine the need for and standards of regulation, significantly expand the freedom of election campaigning on the principle of 'permissive by default, restrictive by exception,' and boldly eliminate unnecessary regulations. Additionally, the “Public's Elections Act” should clarify the contents that the general public needs to know and adopt as norms for their actions, consider transitioning from limiting the election campaign period to regulating election campaign costs, and also critically review and adjust any conflicting or contradictory legal interpretations, as well as consider simplifying the legal structure through the categorical classification of the “Public Official Election Act.”