such as the President fall within the definition of a 'public official
or anyone obligated to maintain political neutrality' of Article 9 of
the Public Officials Election Act.
1) Article 9 of the Public Officials Election Act is a statutory
provision that specifies and realizes the constitutionally requested
'obligation of public officials to maintain neutrality concerning
elections,' derived from Article 7(1) (status of a public official as a
servant for the public as a whole), Article 41, Article 67 (principle
of free election) and Article 116 (principle of equal opportunity among
the political parties) of the Constitution. Therefore, the 'public official'
within the meaning of Article 9 of the Public Officials Election Act
means any and all public officials who should be obligated to maintain
neutrality concerning elections, that is, more particularly, any or all
public officials who are in a position to threaten the 'principle of
free election' and 'equal opportunity among the political parties at
the election.' Considering that practically all public officials are in a
position to exercise undue influence upon the election in the course of
exercising through exercise of their official duties, public officials
here include, in principle, all public officials of the national and local
governments, that is, all career public officials as narrowly defined,
and, further include public officials at offices of political nature who
serve the state through active political activities (for example, the
President, the Prime Minister, the ministers of the administration,
and the chief executive officer at various levels of local government
such as the governor, the mayor, and the county magistrate).
The possibility of affecting the public's open opinion formulation
process and distorting the political parties' competitive relationship
through the function and influence of the official duties is particularly greater for the executive institutions at the national or local governments. Therefore, political neutrality concerning elections is even
more greatly requested than other public officials for the President
and the chief executive officers at the local governments.
2) Obligating public officials to maintain neutrality concerning
elections in Article 9 of the Public Officials Election Act is a mere
specification of the constitutional request of the principle of free election, the principle of equal opportunity among the political parties,
and the 'obligation of public officials to maintain neutrality concerning
elections' derived from Article 7(1) of the Constitution, made applicable to public officials in the area of election law. Thus, such provision is constitutional as long as it is interpreted to exclude the members of the National Assembly and the members of the local legislatures
from whom political neutrality concerning elections cannot be requested.
The members of the National Assembly and the members of the
local legislatures are not 'public officials' within the meaning of Article
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