[영문판례]
Restriction on Election Law Violator's Eligibility for Election
[20-1(A) KCCR 98, 2004Hun-Ma41, January 17, 2008]
In this case, provision at issue is an election law regulation which prevents election law violator from running for public election for five years since he or she was sentenced to a fine of one million Won or more. The Korean Constitutional Court dismissed the constitutional complaint alleging the unconstitutionality of such provision on the ground that the provision at issue restricting eligibility for election was not infringing upon the right to hold public office in violation of the proportionality principle.
Background of the Case
The complainants were convicted of having violated the Election of Public Officials and the Prevention of Election Malpractices Act (herein after the "Election Act") and sentenced to a fine of one million Won or more. Pursuant to Article 19 Item 1 of the Election Act which restricts eligibility for election for 5 years when a person would get a fine of one million Won or more as final penalty (hereinafter the "Instant Provision"), the complainants could not run for public elections. The plaintiffs brought this constitutional complaint claiming that the Instant Provision infringed upon their right to hold public office.
Summary of Decision
The Constitutional Court denied the constitutional complaint by 7 to 2 decision because the Instant Provision was not in violation of the Constitution
1. Majority Opinion of Seven Justices
Restricting the eligibility for election of the election Law violator who hampered the fairness of election would be effective way for fair election through blocking the possibility of fraudulent election. Ordinary courts including the Supreme Court which have jurisdiction
over election case reasonably evaluate not only the conditions of assessment of the culpability but also the restriction of the eligibility for election in deciding sentence. The period of five years during which the eligibility for election is restricted disallows the Election Law violator to run for election only one time. In light of the foregoing, the means that the legislator chose to restrict the eligibility for election is not going beyond the legislator's discretion. Therefore, the Instant Provision is not infringing upon the right to hold public office in violation of the principle of proportionality.
2. Dissenting Opinion of Two Justices
The right to run for election is an important basic right for the realization of people's sovereignty and democracy. To make the restriction of eligibility for election for five years depend upon the assessment of culpability in criminal case is to entrust the court excessive discretion to make important restriction on such right to run for election with no objectively verifiable criteria. Furthermore, it obstructs the proper exercise of judicial power by drawing a criminal justice into a political arena. In addition, it is impossible for the court to objectively judge the size of illegality and the degree of culpability which is suitable to the fine of 1,000,000 won. Hence, "the fine of one million won or more" cannot be an objective and reasonable criterion to deprive the right to run for public election for 5 years. For the reason, the Instant Provision in question is not in accord with the principle of democracy and people's sovereignty and is infringing upon the complainant's right to hold public office by using arbitrary means which is neither objective nor reasonable.