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An election is not merely a process to decide the winner of an election campaign. It is a process through which citizens express their diverse political opinions, and candidates contribute to the formation and conveyance of political opinions. An election contributes to the maintenance of peace in a democratic society as constituents find a vent for their political desires through the election process. And an election is a process through which people exercise their sovereignty. Therefore, the election system must be designed to accurately reflect people’s opinions and guarantee the freedom of choice. Unless the electoral process, by which the voters express their preferences for the candidates and parties to represent them in parliament and government, are designed in such a manner as to permit the honest and accurate reflection of their will, the concept of the people as the sovereign power holder remains a sterile hypothesis. Especially in an advanced industry society, participation is tantamount to the legitimacy of democratic political system. In this light, in discussing the constitutional problems of electoral process, there are two fundamental subject matters; first, free expression of citizens including political parties and political candidates, second, accurate reflection of their will. This paper deals with the former subject matter; political freedom of expression in political process or freedom of election campaign. The freedom of election campaign is not only guaranteed by constitutional principle of the people’s sovereignty, human dignity and worth, the right to pursue happiness, but also protected under freedom of expression of Article 21(1), the principle of free election. Furthermore, in the light of the historical development of freedom of expression, it is clear the political expression is at the very core of freedom of expression. Thus the nature of the freedom of election campaign suggests that a deferential approach, a proportionality test, a minimum rationality test is inappropriate. On the contrary strict scrutiny test should be applied. Legislators assume that the integrity of electoral process relying on reasoned apprehension of harm is the most important interest and the Korean Constitutional Court(KCC) rules that the freedom of election campaign is outweighed by the integrity of electoral process. And the KCC doesn’t adopt the strict scrutiny standard in reviewing the constitutionality of the legislations regulating election campaign. Rather the KCC adopt a proportionality test. But KCC’s attitude is apparently wrongful. The integrity of electoral process is not a compelling and substantial objective, but a purely administrative interest. Furthermore, in the KCC’s decisions dealing with election campaign, no specific social science evidence has been adduced that if election campaign is freed, the fairness of election will be impaired. The government and the KCC should not take the integrity of electoral process relying on postulated harms as the standard by which the constitutionality of the legislations regulating election campaign is assessed. While the benefits of the ban on the election campaign are marginal, the deleterious effects are substantial. The freedom of election campaign is one of the most important rights in realizing democratic ideals, and should not be subject to unnecessary regulation and restriction. It should only be allowed when a measure is a necessary in acquiring compelling public objective and there are no less restrictive alternatives. Considering role of freedom of election campaign in the democratic society, a wide scope of legislative discretion should not be recognized in establishing legislations regulating election campaign. In conclusion, the bans on election campaign prescribed in the Election Act is an unconstitutional limit on free expression and against the principle of democracy. An election should be a festival in which all voters participate and through which they rhapsodize over political parties, candidates, policies.


An election is not merely a process to decide the winner of an election campaign. It is a process through which citizens express their diverse political opinions, and candidates contribute to the formation and conveyance of political opinions. An election contributes to the maintenance of peace in a democratic society as constituents find a vent for their political desires through the election process. And an election is a process through which people exercise their sovereignty. Therefore, the election system must be designed to accurately reflect people’s opinions and guarantee the freedom of choice. Unless the electoral process, by which the voters express their preferences for the candidates and parties to represent them in parliament and government, are designed in such a manner as to permit the honest and accurate reflection of their will, the concept of the people as the sovereign power holder remains a sterile hypothesis. Especially in an advanced industry society, participation is tantamount to the legitimacy of democratic political system. In this light, in discussing the constitutional problems of electoral process, there are two fundamental subject matters; first, free expression of citizens including political parties and political candidates, second, accurate reflection of their will. This paper deals with the former subject matter; political freedom of expression in political process or freedom of election campaign. The freedom of election campaign is not only guaranteed by constitutional principle of the people’s sovereignty, human dignity and worth, the right to pursue happiness, but also protected under freedom of expression of Article 21(1), the principle of free election. Furthermore, in the light of the historical development of freedom of expression, it is clear the political expression is at the very core of freedom of expression. Thus the nature of the freedom of election campaign suggests that a deferential approach, a proportionality test, a minimum rationality test is inappropriate. On the contrary strict scrutiny test should be applied. Legislators assume that the integrity of electoral process relying on reasoned apprehension of harm is the most important interest and the Korean Constitutional Court(KCC) rules that the freedom of election campaign is outweighed by the integrity of electoral process. And the KCC doesn’t adopt the strict scrutiny standard in reviewing the constitutionality of the legislations regulating election campaign. Rather the KCC adopt a proportionality test. But KCC’s attitude is apparently wrongful. The integrity of electoral process is not a compelling and substantial objective, but a purely administrative interest. Furthermore, in the KCC’s decisions dealing with election campaign, no specific social science evidence has been adduced that if election campaign is freed, the fairness of election will be impaired. The government and the KCC should not take the integrity of electoral process relying on postulated harms as the standard by which the constitutionality of the legislations regulating election campaign is assessed. While the benefits of the ban on the election campaign are marginal, the deleterious effects are substantial. The freedom of election campaign is one of the most important rights in realizing democratic ideals, and should not be subject to unnecessary regulation and restriction. It should only be allowed when a measure is a necessary in acquiring compelling public objective and there are no less restrictive alternatives. Considering role of freedom of election campaign in the democratic society, a wide scope of legislative discretion should not be recognized in establishing legislations regulating election campaign. In conclusion, the bans on election campaign prescribed in the Election Act is an unconstitutional limit on free expression and against the principle of democracy. An election should be a festival in which all voters participate and through which they rhapsodize over political parties, candidates, policies.