32.Case on Constitutionality of Concurrent Sentence for Separate Charges including an Election Crime

[26-2(A) KCCR 505,2013Hun-Ba208, September 25, 2014]

In this case, the Court decided that Article 21 of the Community Credit Cooperatives Act, which disqualifies one from being an executive of a community credit cooperative if he or she is charged with an election crime and sentenced to a fine of at least 1 million won, is incompatible with the Constitution as it does not have a provision ordering separate proceedings and sentencing for an election crime in case it is merged with an additional charge and the two are jointly heard as concurrent crimes.

Background of the Case

(1)The complainant was elected as the Chairperson of the ○○ Community Credit Cooperative, but was fined 2 million won as a concurrent sentence for an election crime under the Community Credit Cooperatives Act (prescribed by Article 85 Section 3) and defamation under the Criminal Act (2012 gojeong 4318, Seoul Central District Court).

(2)With the appeal of the abovementioned case pending in the Supreme Court (2013Do6465), the complainant filed a motion requesting a constitutional review of subparagraph 8 of Article 21 Section 1 and Article 21 Section 2 of the Community Credit Cooperatives Act, alleging that they do not provide for separate proceedings and sentencing for concurrent crimes that merge an election crime with another crime (hereinafter the “separate sentencing provision”) and are therefore unconstitutional. As this motion was denied, the complainant filed the constitutional complaint with this Court.

Subject Matter of Review

The issue under review is the constitutionality of Article 21 of the Community Credit Cooperatives Act (amended by Act No. 10437, March 8, 2011) (hereinafter the “present provision”), which does not allow for separate sentencing for each crime when it is merged with an election crime under the same Act. The provision at issue is set out below:

Provision at Issue

Community Credit Cooperatives Act (Amended by Act. No. 10437, March 8, 2011)

Article 21 (Disqualifications for Executives)

(1) None of the following persons shall be an executive of a credit cooperative: Provided, That subparagraph 16 shall not apply to a full-time director under Article 18 (3):

(subparagraph 1 through 7 omitted)

8. A person in whose case three years have not passed since his/her imprisonment or punishment by a fine more than one million won was completely executed or exempted, as declared by a court, for committing a crime under Article 85 (3);

(subparagraph 9 through 18 omitted)

(4) A credit cooperative or the Federation may request the chief of a police station having jurisdiction over its main office to give it necessary assistance, such as inquiries about criminal records falling under paragraph (1) 3 through 11, in order to ascertain whether executives or candidates for executives have disqualifications under paragraph (1), and the chief of the relevant police station shall give it an answer about the result thereof.

Community Credit Cooperatives Act (Wholly Amended by Act. No. 8485, May 25, 2007)

Article 21 (Disqualifications for Executives)

(2)Where a ground under paragraph (1) is found or arises, the relevant executive shall retire from office automatically.

(3) An act in which an executive who retired from office pursuant to paragraph (2) had been involved before his/her retirement shall not lose its effect.

Summary of the Decision

1.Insofar as the present provision does not provide for separate sentencing for concurrent crimes, courts are unable to separate the proceeding on concurrent crimes involving an election crime prescribed by the Community Credit Cooperatives Act either by analogically applying Article 18 Section 3 of the Public Official Election Act or applying Article 300 (Separate or Joint Oral Proceedings) of the Criminal Procedure Act. As a result, a concurrent sentence should be made in accordance with Article 38 of the Criminal Act that provides for weighted punishment, which could be interpreted that the entire sentence is attributed to charges of an election crime under the Community Credit Cooperatives Act and that the disqualification of a credit cooperative executive should inevitably be based on this interpretation. Therefore, the present provision is not against the principle of void for vagueness.

2.The present provision does not have a separate sentencing provision, and, consequently, courts have no choice but to hand down a concurrent sentence for concurrent charges involving an election crime without separate proceedings and to disqualify one from being an executive by attributing the whole sentence to the election charge. By doing so, the present provision is imposing excessive restriction that is more than necessary to achieve the legislative purpose. In particular, if the statutory punishment for the other crime merged with the election crime is imprisonment only or the minimum statutory punishment is at least 2 million won in fines (at least 1 million won should be fined even when allowing for discretionary mitigation), one gets to be disqualified

to become an executive of a credit cooperative regardless of the gravity of crime or criminal liability that actually should serve as the ground for disqualification. This significantly unreasonable state evidently constitutes an excessive restriction that cannot be tolerated under the Constitution. In this sense, the present provision breaches the rule against excessive restriction and infringes on the occupational freedom of executives or those aspiring to be executives of credit cooperatives.

3.There being no separate sentencing provision, one can lose his or her position as an executive if he or she receives a concurrent sentence of at least 1 million won in fines or imprisonment for an election crime merged with another crime, although a person can be sentenced to a fine less than 1 million won when he or she is tried for a minor election crime alone. For this reason, the present provision may result in discrimination without reasonable grounds of those tried and punished on charges of concurrent crimes that involve election crimes from those who are charged and punished for an individual crime, and this is also against the principle of equality provided in the Constitution.

4.The present provision violates the Constitution and should, in principle, be held unconstitutional. However, its unconstitutionality lies in the legislative inaction to order separation of sentencing in dealing with election crimes and other crimes together, so the legislature will have to amend the present provision and devise a separate sentencing provision for concurrent crimes in removing the unconstitutionality.

Yet, if the present provision is struck down and thus invalidated immediately or is suspended from application, there will be no applicable provision to disqualify offenders of election crimes provided in the Community Credit Cooperatives Act, which in turn will give rise to an unacceptable legal vacuum. Therefore, it is necessary to maintain the present provision until the legislature amends them in accordance with this Court’s decision.