현행 공직선거법상의 문제점과 개선방안에 관한 연구

Abstract

Nobody would deny the importance of election in today's democratic states. Election is an indispensable system for democracy and a procedure through which a nation can exercise political rights, and people for public office are selected. In particular, since election is the initial step of democratic government to select representatives who take care of state affairs based on the nation's intentions, the importance cannot be overemphasized. Democratic government requires securing the opportunities for the nation to participate in political procedures as potentate. As stated in Art. 1 of the constitution, a principle of sovereignty, representative democracy, is the basis for today's election system of popular government, in which participation of the nation is necessary, and representatives that make and present political decisions on behalf of the nation and thus consist of the democratic society. The exercise of sovereignty or political rights of the nation, therefore, should be secured in principle as much as possible. The principle of free election is essence of democratic election system, based on the constitution regulations such as the principle of the national sovereignty, the principle of representative democracy, and right of suffrage. Such principles of free election involve not only the freedom of decision making and realization among the nation, but also the freedom of vote, candidacy, and election campaign. Basically, the freedom of election campaign is protected by Article 21 of the Constitution, but the history of Korean election apparently shows that our politics, economy, society, and culture have been tainted by rigged election and heated election campaign. Thus, it is unavoidable to take measures to prevent political, economic, and social loss due to fraudulent election and overheated election campaign, and impose limitations on activity of candidates and those who are involved in political procedures. Current election laws, however, overly put so much emphasis on justice election that freedom of election, especially freedom of election campaign is too much limited. Therefore, this study aims to identify problems of the election system full of regulations under the current Public Office Election Law and explore desirable improvement directions from legal and institutional perspectives so that the two principles of ‘freedom’ and ‘fairness’ of election can be properly harmonized.