2. Case on 50 Times Administrative Penalty Fee for Violators of Public Official Election Act

[21-1(A) KCCR 337, 2007Hun-ka22, March 26, 2009]

Questions Presented

1.Extension of the subject matter of review into revised Articles

2.Whether Article 261 Section 5 Item 1 of the former Public Official Election Act (revised by Act No. 7189 on March 12, 2004, but before revised by Act No. 8879 on February 29, 2008, hereinafter the "instant former provision") and Article 261 Section 5 Item 1 of the Public Official Election Act (revised by Act No. 8879 on February 29, 2008, hereinafter the "instant revised provision") violates the principle of prohibition against excessive restriction

3.The declaration of incompatibility with the Constitution and order of suspension of the application of the contested provisions until the revision for courts, governmental bodies and municipalities

Summary of the Decision

1.The subject matter of review of this case is the constitutionality of the instant former provision. However, the instant revised provision is identical to the instant former provision in related to the standard and amount of administrative penalty fee ('the amount 50 times worth the received money or the value of food, goods') that raised the constitutionality issue. Because the instant revised provision would reach the same conclusion to the instant former provision, the instant revised provision shall be included into the subject matter of review.

2.The instant former provision and revised provision (hereinafter, "the Provision") state that the administrative penalty fee imposed on any person who received goods from people related to election is uniformly 'the amount 50 times worth the received money or the value of food, goods' with no possibility of reduction. However, in case of 'an action which received goods, food, books, travel, etc., and

convenient transportation by violating the regulations prohibiting bribery which is subject to administrative penalty fee, there can be a big difference as to the level of violation according to the motivation and types of the violation, the context and the method of bribery, the relationship between the donator and the violator, the circumstances afterwards etc. However, imposing administrative penalty fees that are uniformly decided just by the standards of the received goods without considering specific and individual situations cannot be restrictions that correspond to levels of responsibility for specific violations. Besides, the instant former provision does not clearly present the specific standard of minor cases that are distinguished from the criminal provision of Article 257 Section 2 of the Public Official Election Law. Thus, in contrast to the original legislative purpose to regulate the small bribery, it would apply to a person who receives expensive goods under the principle of legality and strict interpretation in criminal law, implying that it would not the appropriate sanction under the principle of liability and it may cause obvious inequity between violators.

Moreover, since the amount of administrative penalty fee imposed by such uniform standard is '50 times' the received money or the value of food, goods, the difference in administrative penalty fee may be largely depending on the value of goods. In this regard, an administrative penalty fee of 50 times worth the received goods for average citizens cannot be perceived as a light regulation. The excessiveness of the instant provision is well described with the below consideration. While 5 million won is the ceiling amount of fine stated in Article 257 Section 2 of the Public Official Election Act, 50 million won of administration penalty fee that amounts 10 times than the ceiling amount of fine can be imposed on a lighter case, for example, where the value of received money, food or goods is 1 million won.

Moreover, the legislative purpose that intends to exterminate small briberies for the fairness of election is not necessarily accomplished by the amount of administrative penalty to be '50 times' worth the received money, food or goods. The purpose can be achieved by mitigated legislative means, for an instant, the administrative penalty fee amount 'less than 50 times'.

3.The instant provision should be declared as unconstitutional as reviewed above due to the violation of the Constitution. However, the unconstitutionality of the instant provision is grounded on not the imposition of administrative penalty fee itself, but the standard and amount of the penalty that are standardized to be disproportionate to the principle of liability and excessively heavy. If the instant provision is declared as unconstitutional, being suspended immediately, the confusion and inequity in enforcing law may be arisen from the legal vacuum against violators who are subject to the instant provision, until the legislature revises the instant provision with the correspond to the unconstitutionality reasoning, and it would principally belong to the legislative discretion to mediate unconstitutional elements to be constitutional. With these considerations, we declare the instant provision is incompatible with the Constitution. Nonetheless, until the legislators revise the provision to eliminate unconstitutionality, the courts, governmental bodies and municipalities shall suspend the application of the instant provision that is declared as incompatible with the Constitution and apply the newly revised provision that eliminate the unconstitutionality, when it is revised.

Dissenting Opinion of Justice Lee Kong-hyun and Justice Kim Hee-ok

From the perspective of history, our election culture strongly demands the legislative regulation with regard to bribery of money, goods, or food from candidates to voters. The instant provision that imposes an administrative penalty fee of 50 times the value of the received goods in the case is a quick and effective regulation method that brings the voter's attention, which is the appropriate means to achieve the legislative purpose.

Moreover, the '50 times' fee established by the instant provision is only applied to received goods that are less than 1 million won, and the unbalance between the violating act and the responsibility has been supplemented in that administrative penalty fee would not be imposed on the violation without intents or faults, or the misconceiver of

illegality with just reasons according to the enforcement of the Act on the Regulation of Violations of Public Order. In this regard, the Provision cannot be seen to have deviated from the scope of legislative discretion and therefore, does not violate the Constitution.

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Parties

Requesting Court

Busan District Court

Movants at the Requesting Court

Oh ○-tae and seventy three others

(The names of all movants are listed in the Appendix)

Underlying Cases

Busan District Court 2007Ra584 and seventy three others

(The case number of all underling cases are listed in the Appendix)

Holding

1.Article 261 Section 5 Item 1 of the former Public Official Election Act (revised by Act No. 7189 on March 12, 2004, and before revised by Act No. 8879 on February 29, 2008) and Article Section 5 Item 1 of the Public Official Election Act (revised by Act No. 8879 on February 29, 2008) are incompatible with the Constitution.

2.Until the legislators revise the above provisions, the provisions shall be suspended by courts and other governmental bodies.

Reasoning

I. Introduction of the Case

A.Park ○-jun, the member of ○○ Party, purchased 230 boxes of anchovy, 88 boxes of laver and 318 boxes of dried fish, that cost around 9,000 won per box, from ○○ store located in Nampo-Dong, Jung-Gu, Busan on January 24, 2006.

B.On the next day, Park ○-jun, sent each box of dried fish to the movants at the requesting court and other appellants listed on the appendix (hereinafter, the movants at the requesting court and other appellants will be referred as 'petitioners') at Busan post office by post office parcel delivery service, after indicating the sender as 'Oh ○-don' who was a prospective candidate running for ○○ Party Busan Mayor in the 4th Nationwide Local Elections held on May 31, 2006.

C.Busan Election Commission, assuming each petitioner received the box of dried fish, imposed the administrative penalty fee of 450,000 won (=9,000won×50) on each petitioner according to Article 116 and Article 261 Section 5 Item 5 of the Public Official Election Act on September 14, 2006. The petitioners filed an objection in court, however, Dongbu Branch Court of Busan District Court imposed the administrative penalty fee of 450,000 on the petitioners by summary proceeding. When the petitioners appealed the decision, the court made the formal judgment that imposed the administrative penalty fee of 450,000 won on petitioners, through hearing. Since the petitioners filed the immediate appeal to the requesting court, the case is pending on the appellate trial.

D.The movants at the requesting court filed a motion to request for the constitutional review.

E.Partly upon granting the said motion, partly sua sponte, the requesting court had decided to request the constitutional review of the Article 261 Section 5 Item 1 of the Public Official Election Act on the ground that there were sufficient reasons to find the provision to be unconstitutional on October 23, 2007, and requested this

constitutional review to the Constitutional Court on November 2, 2007.

II. Subject Matter of Review

A.The subject matter of review of this case is the constitutionality of Article 261 Section 5 Item 1 of the former Public Official Election Act (revised by Act No. 7189 on March 12, 2004, but before revised by Act No. 8879 on February 29, 2008; provided that the title of this Act prior to the revision by Act No. 7681 on August 4, 2005 had been 'Act on the Election of Public Officials and the Prevention of Election Malpractices').

B.Article 261 Section 5 Item 1 of the Public Official Election Act revised by Act No. 8879 on February 29, 2008 are substantially identical to the instant former provision in related to the standard and amount of administrative penalty fee ('the amount 50 times worth the received money or the value of food, goods') that raised the constitutionality issue, except the proviso that allows the discretional reduction of administrative penalty fee in case of return or surrender. Because revised Article 261 Section 5 Item 1 of the Public Official Election Act (hereinafter, 'the instant revised provision') would reach the same conclusion to the instant former provision, the instant revised provision shall be included into the subject matter of review (hereinafter, the instant former provision and revised provision will be referred as the 'Instant Provision' altogether).

C.The Instant Provision (underline added) and related provisions are followed as below:

[Instant Provisions]

The former Public Official Election Act (revised by Act No. 7189 on March 12, 2004, but before revised by Act No. 8879 on February 29, 2008)

Article 261 (Imposition and Collection of Administrative Penalty for Negligence, etc.)

(5)A person who falls under any of the following items (excluding a person who has been given money, food or articles the value of

which exceeds one million won) by violating the provisions of Article 116 shall be punished by an administrative penalty for negligence equivalent to 50 times (two million won in the case of officiators) of the amount, or the values of food or goods given to him: Provided, That the ceiling on administrative penalty fee shall be set as fifty million won:

1. A person who receives goods, food, books, sight-seeing and other travel conveniences;

The Public Official Election Act (revised by Act No. 8879 on February 29, 2008)

Article 261 (Imposition and Collection of Administrative Penalty for Negligence, etc.)

(5)A person who falls under any of the following items (excluding a person who has been given money, food or articles the value of which exceeds one million won) by violating the provisions of Article 116 shall be punished by a fine for negligence equivalent to 50 times (two million won in the case of officiators) of the amount, or the values of food or goods given to him:Provided, That the person falling under items 1 or 2 has returned the money, food or articles (refers to money equivalent to the value in cases where those that have been given cannot be returned) that have been given to the election commission and has surrendered himself, he may be given a reduction in or be relieved of the fine for negligence as prescribed by National Election Commission Regulations:

1. A person who receives goods, food, books, sight-seeing and other travel conveniences;

[Relevant Provisions]

The Public Official Election Act (revised by Act No. 8879 on February 29, 2008)

Article 116 (Prohibition of Solicitation or Demand for Bribery)

No one shall receive, or solicit or demand briberys from or to a political party (including the preparatory committee for the formation of a political party), the representative of a political party, the head of a political party's election campaign office, a member of the National Assembly, a member of the local council, the head of a local

government, a candidate (including a person who wishes to be a candidate) or his family, an election campaign manager, the chief of an election campaign liaison office, an election campaign worker, an accountant in charge, an election campaign speechmaker, an interviewer, a debater, a company, etc. having relation to the candidate or his family as provided in Article 114 (2), its officer or employee, or a third person as prescribed in Article 115, in connection with any election.

Article 257 (Violation of Prohibition and Restriction on Bribery Act)

(2) Any person who instructs, solicits, mediates, demands, or receives any bribery [excluding any person falling under the provisions of Article 261 (5)] to or from a political party (including a preparatory committee for formation of a new political party), the representative of a political party, the head of a political party's electoral office, a National Assembly member, a local council member, the head of a local government, a candidate (including a candidate who wishes to be a candidate; hereafter, the same shall apply in this Article), his spouse, the candidate's or his spouse's lineal ascendant, lineal descendant or siblings, spouse of the candidate's lineal descendant or siblings, election campaign manager, chief of the election campaign liaison office, election campaign worker, accountant in charge, election campaign speechmaker, interviewer or debater, company which is related to the candidate or his family, or its officer or employee, or third person (referring to a counterpart to the act as provided in Article 116), as provided in Article 81 (6), 82 (4), 113, 114 (1) or 115, shall be punished by imprisonment for not more than three years or by a fine not exceeding 5 million won.

III. Reasons for Request for Constitutional Review and Arguments of Relevant Agencies

(intentionally omitted)

IV. Review on Merits

A. Legislative history and background of the Instant Provision

1.The instant former provision that imposed administrative penalty, instead of fine, on persons who received money and goods by violating Article 116 (Prohibition of Solicitation or Demand for Bribery) of the Public Official Election Act was created at the time of revision of the former 'Act on the Election of Public Officials and the Prevention of Election Malpractices (the title of this Act has been altered from 'Act on the Election of Public Officials and the Prevention of Election Malpractices' to Public Official Election Act by Act No. 7681 on August 4, 2005)' by Act No. 7189 on March 12, 2004, so that it can impose a fifty times administrative penalty for persons who received small bribes that had been originally fined. It intended to impose administrative penalty through simple proceedings, instead of criminal punishment under Article 257 Section 2 of the Public Official Election Act, on persons who take minor bribes, for the efficacy of punishment, with the consideration of the practices that rarely imposed punishment on the persons who received bribery. Even when a bribery related to election was exposed by Election Commission or Police, Article 257 of the Pubic Official Election Act had rarely applied so that it raised the efficacy problem of punishment because the voters who received bribery were rarely punished, except a few substantial bribes, while candidates who gave bribes were punished: it lead the practice that voters kept demanding goods or food. The legislature intends to eradicate small bribes of several elections effectively and practically; to enhance the sense of election culture of voters; and to rectify the traditional wrongful election culture such as bribes or treats by altering criminal punishment on minor bribes into 50 times administrative penalty.

2.However, at the time of the revision of the instant former provision, the part of 'bribees' of the criminal punishment provision, Article 257 Section 2 of the Public Official Election Act, has been revised to 'bribees [excepting the persons under Article 261 (Imposition and Collection of Administrative Penalty) Section 5]'. In contrast to the legislative purpose of the instant former provision that attempts to exterminate small bribes effectively, the contents of the instant former provision does not specify the standard of minor cases

or the specific scope of the patterns of activities, such as the standard and calculation methodology of value and the cause of acceptance, that are distinguished from the cases of Article 257 Section 2 of the same Act. Under the principle of legality or strict interpretation in criminal law, it implies that the instant former provision regarding administrative penalty, not Article 257 Section 2 of the same Act regarding criminal punishment, shall be applied even to the acceptance of valuable goods that would be never accepted as small amounts (see2006Do8136 of Supreme Court decided on April 27, 2007; 2007Do1720 of Supreme Court decided on May 31, 2007, etc.).

Therefore, the instant revised provision has been revised to impose criminal punishment of Article 257 Section 2 of the same Act, not administrative penalty, on the acceptance of money, food, or goods exceeding 1 million won that violates the provision of prohibition on bribery, by explicitly excluding the persons who received money, food, or goods exceeding 1 million won from the application of the administrative penalty clause.

3.Compared to the instant former provision, the instant revised provision set the limitation of the applicable value of goods as 1 million won, clarifying the amount of administrative penalty fee, which amounts 50 times worth the good, shall be limited into 50 million won; in addition, it repealed the ceiling amount of administrative penalty fee and inserted the proviso that allows discretional deduction in the case of return or surrender.

B. The Principle of Prohibition on Excessive Restriction

1. The Legitimacy of Legislation and Appropriateness of Means (Imposition of Administrative Penalty)

The Instant Provision purposes to eradicate effectively small bribery that is provided by candidates of public official to voters. It accords with the maintenance of social order and public interests of Article 37 Section 2 of the Constitution, thus the purpose of legislation is legitimate.

It would be necessary to impose sanctions on bribees as well as

bribers of bribery in order to stamp from buying voters; and it would be basically within the scope of legislative discretion that considers circumstances in deciding whether violation against administrative law needs to be sanctioned by administrative penalty fee, the administrative sanction, or criminal sanction (6-1 KCCR 281, 303, 91Hun-Ba14, April 28, 1994; 10-1 KCCR 624, 635-636, 96Hun-Ba83, May 28, 1998). Accordingly, it would be the appropriate means for achieving legitimate purpose to impose administrative penalty fee on voters who receive bribery related to public official election.

2. Uniformity and Excessiveness of Sanctions

(A) If the legislature decided to impose administrative penalty that is administrative sanction within the scope of the legislative discretion, the issue of setting the amount of administrative penalty would belong to the legislative discretion unless it is excessive so that the Constitutional Court should concern the issue due to the unreasonable and arbitrary exercise of legislative discretion, such as the violation of principle of equality of the Constitution with regard to other administrative regulation violators by loosing the balance between the violation of duty and the responsibility or the violation of principle of proportionality and principle of prohibition of excessive restriction under Article 37 Section 2 of the Constitution by departing from the necessity to achieve the purpose (10-1 KCCR 624, 636, 96Hun-Ba83, May 28, 1998; 16-1 KCCR 272, 281, 2002Hun-Ba97, February 26, 2004).

(B) However, the Instant Provision uniformly standardizes the amount of administrative penalty fee that will be imposed on the violators as the '50 times worth the received money, food or goods' without any exception. Because the standard of imposing administrative penalty fee binds the administrative penalty fee proceeding in court, the competent court of the administrative penalty case would follow the Instant Provision that set the amount of administrative penalty fee, unless it decides not to impose the sanction. It would not violate the Constitution to stipulate uniformly the imposition standard of administrative penalty in a statute. However, in the case of 'the act

that receives goods, food, book, sightseeing, or transportation violating the prohibition clause of bribery', which is subject to administrative penalty fee by the Instant Provision, the imposition of administrative penalty that is uniformly standardized with the value of received goods, without considering specific and individual circumstances, would not be the appropriate sanction that accords with the responsibility of specific violation because there are significant differences in the degree of illegality, depending on the motivation or types of violation, the context and method of bribery, the relationship between bribers and bribees, and the circumstance afterwards.

Especially, the instant former provision would apply to the bribery of expensive goods that cannot be a small amount, in contrast to the original legislative intent under the principle of legality and strict interpretation in criminal law. As a result, according to the instant former provision, the administrative penalty fee of 50 million won would be imposed on whether the bribery value is 1 million won or 50 million won, and it calculate the flat 50 times administrative penalty fee worth the value of goods without considering the circumstances after the fact such as the violator's return or surrender related to bribery. Such sanction would not correspond to the principle of liability, and it would cause the inequity among violators. Compared to the instant former provision, the instant revised provision clarifies to exempt the money, food, or goods worth more than 1 million won from the application of the provision, and it inserts the special deduction clause that allows discretional deduction in the case of return or surrender. While it relieved the uniform imposition standard that was the unconstitutional element located in the instant former provision, it could not eliminate the unconstitutionality of the instant former provision because it does not consider the specific and individual circumstances such as the motivation and types of violation, context and method of bribery, and relationship between bribers and bribees in imposing the administrative penalty on violators, except return or surrender.

(C) Moreover, the provision automatically calculate the amount of administration penalty fee as '50 times' of the value of received food or goods, which causes significant differences in the administration

penalty fee, depending on the value of received goods and which is not light sanctions for voters.

The burden of administrative penalty under the Instant Provision can be clearly presented when compared with the statutory punishment of criminal fine set in Article 257 Section 2 of the Public Official Election Act. The Instant Provision intends to regulate minor cases, compared to the criminal punishment clause of Article 257 Section 2 of the Public Official Election Act, in order to exterminate small bribery in an effective and practical way. However, while the ceiling amount of fine stated in Article 257 Section 2 of the Public Official Election Act is 5 million won, 50 million won of administration penalty fee that amounts 10 times than the ceiling amount of fine can be imposed on a lighter case, for example, where the value of received money, food or goods is 1 million won. The difference would not be justified, even considering the different nature of criminal punishment and administrative sanction.

(D) Even considering the legislative purpose that intents to exterminate small bribery for eradicating election corruption and enhancing the fairness of election and election culture, the purpose does not require the amount of administrative penalty to be '50 times worth the received money, food or goods'. The purpose can be achieved by mitigated legislative means, for an instance, that may set the amount of administrative penalty fee as 'less than 50 times worth the received money, food or goods'.

3. Sub-conclusion

Therefore, the Instant Provision not only standardizes uniformly the standard and amount of administrative penalty fee that is imposed on violations, unconforming to the principle of liability, but also departs from the legislative purpose by regulating violations excessively, thereby infringing the principle of prohibition of excessive restriction.

C. The Decision of Incompatibility with the Constitution and the Suspension of Application

The Instant Provision should be declared as unconstitutional as reviewed above due to the violation of the Constitution. However, the unconstitutionality of the Instant Provision is grounded on not the imposition of administrative penalty fee itself, but the standard and amount of the penalty that are not only standardized to be disproportionate to the principle of responsibility but excessively heavy. If the Instant Provision is declared as unconstitutional, being suspended immediately, the confusion and inequity in enforcing law may be arisen from the legal vacuum against violators who are subject to the Instant Provision, until the legislature revises the Instant Provision withthe correspond to the unconstitutionality reasoning, and it would principally belong to the legislative discretion to mediate unconstitutional elements to be constitutional. With these considerations,we declare the Instant Provision is incompatible with the Constitution. Nonetheless, until the legislators revise the provision to eliminate unconstitutionality, the courts, governmental bodies and municipalities shall suspend the application of the Instant Provision that is declared as incompatible with the Constitution and apply the newly revised provision that eliminate the unconstitutionality, when it is revised.

V. Conclusion

Because the Instant Provision is incompatible with the Constitution, we decided that the Instant Provision is incompatible with the Constitution, holding to suspend the application of the Instant Provision by courts, governmental bodies and municipalities until the legislators revise the provision. All Justices, except Justice Lee Kong-hyun and Justice Kim Hee-ok, reached an agreement in making this decision.

VI. Dissenting Opinion of Justice Lee Kong-hyun and Justice Kim Hee-ok

We believe the Instant Provision does not violate the Constitution as following reasons.

It would belong to the legislative discretion, unless it is 'clearly unreasonable or arbitrary, to decide the type of administrative penalty

for a certain violation against administrative law.

From the perspective of history, our election culture strongly demands the legislative regulation with regard to bribery of money, goods, or food from candidates to voters. The criminal punishment clause had been existed from the National Assemblymen Election Act enacted in 1948 to the enforcement of the Instant Provision in March 2004. However, bribery such as providing money or goods or entertaining with food by candidates had been happened. The actions were conducted in secret and systematical ways, making it hard to be discovered, and even when it was discovered, violators rigged the illegal conducts so that the diluted illegality lead the ineffectiveness in criminal punishment and voters who received bribery were hardly punished.

In considering such circumstances, the legislature revised the sanction to the 50 times administration penalty fee for minor donations, while the existing criminal punishment would be imposed on other large bribes in March 2004, attempting to correct the wrongful election culture of bribes of small money or reception by imposing the speedy, uniform and explicit sanction ('50 times administrative penalty') on minor illegal bribes. As an effective and speedy regulatory means to alert voters, the uniform '50 times administrative penalty fee' has been regarded to succeed in exterminating minor illegal bribes. Therefore, the Instant Provision would be the appropriate and effective means for the legislative purpose.

The majority opinion states 'less than 50 times' administrative penalty, not 'standardized 50 times' administrative penalty, may accomplish the legislative purpose. However, it is doubtful that such mitigated clause would bring such result. From the perspective of voters, the symbolic meaning and effectiveness of the standardized '50 times administrative penalty' would be certainly much larger than 'less than 50 times administrative penalty'. The penalty of 50 times worth the value of received goods would be more effective in preventing crimes generally than the imposition of 'less than 50 times' penalty that would consider individual circumstances. Therefore, the regulation of 'less than 50 times' administrative penalty would not sufficiently achieve the legislative purpose of the Instant Provision that intends to

exterminate election corruption by controlling the expectation for bribes of candidates and voters.

According to the majority opinion, the flat 50 times administrative penalty fee is unconstitutional because it cannot consider individual and specific circumstances such as the motivation and types of violation, the context of the method, the relationship between the briber and bribee, and circumstances afterwards.

The uniform imposition of administrative penalty 50 times worth the value of received goods less than 1 million won may be excessive sanction against voters, depending on the specific circumstances of violation. However, it should be noted that the Instant Provision intends to improve the election culture and reinforce people's alert to election corruption, such bribery had been criminally punished as illegal conducts and the real amount of administrative penalty fee imposed in practice are usually less than 50 million won. The unfairness and corruption of election by small bribes require the simple and effective legislative means to rectify the problem, and the legislature has the discretion to adopt administrative penalty in choosing the means of administrative punishment for the achievement of significant public interests, despite it may sacrifice the specific and individual reasonableness. On the other hand, the Act on the Regulation of Violations of Public Order that took effect on June 2008 impose administrative penalty fee neither on the violation without intents or fault (Article 7) nor the violation caused by the misconceiver of illegality of the conduct with a just reason (Article 8). It would supplement the unbalance between the conduct and responsibility in related to flat '50 times administrative penalty fee'.

Because the Instant Provision can impose administrative penalty fee up to 50 million won, the maximum amount of administrative penalty fee may be excessively expensive when compared to the fine less than 5 million won that are imposed on bribery that has heavier illegality. However, the sanction is applied to a bribery whose value is less than 1 million won, and the ceiling amount of 50 million won is set because the provision intends to regulate bribery less than 1 million won. In practice, the value of bribery subject to the penalty is usually less than 1 million won as the instant case regards the bribery of 9,000 won, that leads the administrative penalty of 450,000 won.

Despite the maximum administrative penalty fee of 50 million won is certainly higher than the maximum fine fee of 5 million won, the maximum amount is grounded on the legislative decision to regulate small bribes that occur frequently than large bribes and needs to be exterminated. Because of the different effect of administrative penalty fee and criminal fine on persons, it alone does not consist of the unreasonable or arbitrary legislative discretion to impose administrative penalty fee of 50 million won.

The majority opinion interprets that the administrative penalty fee of 50 million won would be imposed on even when the value of received goods exceeds 1 million won with regard to the imposition standard of the instant former provision. However, the legislative purpose clearly suggests that the 50 million won is resulted when the value is '1 million won', and the instant former provision specifies the '50 times worth the value', implying that the instant former provision would not apply to the bribery exceeding 1 million won. The interpretation of the majority opinion would eventually ignore the context of law that states to 'impose administrative penalty 50 times worth the value', not making sense of the criminal punishment clause that aims to regulate the bribery exceeding 1 million won. The National Election Commission has applied the Instant Provision to the bribery below 1 million won in practice. Despite the instant revised provision clarifies the point, it was revised not because the instant former provision applied to goods below 50 million won, but because it needs to correct such possible misinterpretation. As a result, in interpreting the instant former provision, the application only to the goods whose value is less than 1 million won has the reasonable grounds, not requiring the 'strict interpretation' that does not correspond to the intent and context of the provision and the system of the Public Official Election Act.

The Instant Provision stipulates the flat administrative penalty fee to respond to the special legislative purpose that intends to regulate our election culture. The scale of '50 times' sanction would not be the obviously wrong legislative means when considering the Instant Provision applies only to the case where a person receives goods whose value is less than 1 million won and it has its own symbolism and effectiveness.

Therefore, the Instant Provision does not violate the Constitution because it does not depart from the scope of the legislative discretion.

Justices Lee Kang-kook (Presiding Justice), Lee Kong-hyun, Cho Dae-hyen, Kim Hee-ok, Kim Jong-dae, Min Hyeong-ki, Lee Dong-heub, Mok Young-joon, Song Doo-hwan

[Attached] The List of requesting petitioners and underlying cases : (intentionally omitted)