Constitutional Court Rules Unconstitutional the Former Election Law Provision Banning In-Person Oral Campaigning Before Election Campaign Period

Constitutional Court Grand Bench.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Constitutional Court has ruled that the former Public Official Election Act provisions, which banned and punished individual face-to-face verbal election campaigning before the official campaign period, are unconstitutional.

On the 24th, the Constitutional Court decided by a 7 (unconstitutional) to 2 (constitutional) vote in a constitutional complaint case filed by former Liberty Korea Party (predecessor of the People Power Party) lawmaker Park Chan-woo. He argued that Articles 59 and Paragraph 2 of Article 254 of the former Public Official Election Act infringed on fundamental rights such as freedom of political expression and were unconstitutional.

In its ruling, the Constitutional Court stated, "The parts of Article 59 of the former Public Official Election Act (before the amendments on February 29, 2012, and February 8, 2017) and Article 59 of the former Public Official Election Act (before the amendments on February 8, 2017, and December 29, 2020) concerning individual face-to-face verbal election campaigning before the campaign period, as well as the part of Paragraph 2 of Article 254 of the Public Official Election Act (amended on January 25, 2010) regarding 'other methods' that include individual face-to-face verbal election campaigning, violate the Constitution."

Article 59 of the former Public Official Election Act (Campaign Period) limited the campaign period to 'from the start date of the election period to the day before the election day' and prohibited all election campaigning except for extremely exceptional cases such as preliminary candidates' campaigning.

With the amendment of the Public Official Election Act on December 29, 2020, Article 59, Clause 4 was newly established, allowing exceptions for pre-election campaigning such as ▲ campaigning by phone or verbally when it is not election day (Clause 4) and ▲ a person intending to become a candidate directly handing out their business cards from 180 days before the election day until before the preliminary candidate registration for that election (Clause 5). The provisions in question pertain to the pre-election campaigning rules under the Public Official Election Act before these amendments.

Paragraph 2 of Article 254 of the Public Official Election Act (Violation of Campaign Period) stipulates punishment: "Anyone who campaigns before the campaign period by methods other than those prescribed in this Act, including promotional facilities, tools, various printed materials, broadcasting, newspapers, news agencies, magazines, other publications, policy presentations, roundtable discussions, debates, hometown associations, alumni meetings, neighborhood meetings, other assemblies, information and communication, establishment of campaign organizations or private organizations, house-to-house visits, or other methods, shall be punished by imprisonment of up to two years or a fine of up to 4 million won." The problematic part is the phrase 'other methods.'

Former lawmaker Park was indicted for violating the Public Official Election Act by conducting pre-election campaigning at a Saenuri Party Chungnam Provincial Party member unity rally attended by constituency residents in Hongseong County, Chungnam, in October 2015, ahead of the 20th general election, and was sentenced to a fine of 3 million won, which resulted in disqualification.

While the Supreme Court was reviewing his appeal in February 2018, Park requested the court to refer the case for constitutional review, asking to confirm the unconstitutionality of the Public Official Election Act provisions that formed the basis for his punishment. After the request was dismissed, he filed a constitutional complaint directly in March of the same year.

In his constitutional complaint, Park argued that the concepts of 'other assemblies' and 'other methods' in the punitive provision of Paragraph 2 of Article 254 of the Public Official Election Act were vague and violated the principle of legality requiring clarity in criminal law, but this argument was not accepted.

The Constitutional Court stated, "'Other methods' is an indeterminate concept; however, the methods listed as examples in the punitive provision all correspond to types of election campaigning used to support or oppose specific candidates. Therefore, it is sufficiently clear that 'other methods' refers to all methods that fall under the concept of election campaigning."

However, the Constitutional Court judged that these provisions excessively restrict freedom of political expression.

Regarding the principle of proportionality, which is the standard for judging infringement of fundamental rights, the Court recognized the legitimacy of the purpose and appropriateness of the means but concluded that the principles of minimal infringement and the balance between the infringed fundamental rights and the public interest protected were not met.

The Court stated, "It is not easy to view the limitation of the campaign period itself by these provisions as an excessive restriction on freedom of political expression. However, even if some regulation of election campaigning is inevitable, the degree of restriction must be reasonably determined by comprehensively considering the political and social development stage and the maturity of public awareness."

The Court further explained, "Today, although there are some shortcomings, a fair election system has been established, public political awareness has increased, and the legislature, reflecting on this, relaxed restrictions on campaign methods that pose less risk of causing side effects such as election overheating through the amendment of the Public Official Election Act on December 29, 2020, to guarantee freedom of election campaigning to the maximum extent."

It added, "Nevertheless, the campaign period provisions in this case comprehensively prohibit election campaigning methods that do not hinder the legislative purpose, such as individual face-to-face verbal appeals, which do not involve costs and have a low risk of causing imbalance due to economic disparities among candidates or socio-economic losses, thereby excessively restricting freedom of political expression such as election campaigning and failing to balance the restriction of fundamental rights with the achievement of public interest."

Ultimately, the Court concluded, "The parts of the campaign period provisions concerning individual face-to-face verbal election campaigning before each campaign period violate the principle of proportionality and infringe on freedom of political expression such as election campaigning."

Regarding the punitive provision of Paragraph 2 of Article 254 of the Public Official Election Act, the Court also stated, "As examined above, the failure to exceptionally allow individual face-to-face verbal election campaigning infringes on freedom of political expression such as election campaigning. Therefore, the part of the punitive provision concerning 'other methods' that punishes individual face-to-face verbal election campaigning also infringes on freedom of political expression such as election campaigning."

Meanwhile, Justices Lee Seon-ae and Lee Jong-seok dissented, stating, "It is difficult to say that the current election culture has significantly changed compared to 2016 when the same provisions were ruled constitutional."

Following the Constitutional Court's ruling of unconstitutionality, the parts of the challenged provisions concerning 'restrictions and punishments on election campaigning by individual face-to-face verbal appeals before the campaign period' lost effect retroactively from July 1, 2016, the day after the Court's last constitutional ruling on these provisions on June 30, 2016.

This content was produced with the assistance of AI translation services.