[1] Whether Article 1 subparagraph 13 of the former Punishment of Minor Offenses Act violates the principle of clarity as required by the principle of no punishment without law (negative)

[2] In a case where the defendant was prosecuted for violation of the former Punishment of Minor Offenses Act on the ground that he had attached a posters with former president's view to housing fence, etc., the case holding that punishment of the defendant's act is within the scope necessary for maintaining order in the community, and it does not excessively limit the freedom of arts or violate the prohibition of abuse as provided by the same Act

[1] In full view of the fact that the Punishment of Minor Offenses Act was enacted for the purpose of maintaining the public order in the society, and the former Punishment of Minor Offenses Act (wholly amended by Act No. 11401, Mar. 21, 2012) has the prior meaning of “definite, excessively,” or without permission.” The above provision limits the target without permission to “any other person or organization’s house or other structure,” and the above provision limits the target to “any other person or organization’s house or other structure” as well as posting or painting advertising materials, etc., and the above provision imposes or cutting letters or paintings on another person or organization’s house or other structure, and also punish “any other person or organization’s moving signboards or other display materials or structure to another person or organization to another person or organization without permission,” and thus, the former part of the above provision does not violate the principle of no punishment without law to the extent that it can be interpreted or executed as a legal institution without permission, and thus, it cannot be interpreted as an interpretation or enforcement of the law.”

[2] In a case where the Defendant was prosecuted for violation of the former Punishment of Minor Offenses Act (wholly amended by Act No. 11401, Mar. 21, 2012; hereinafter the same shall apply) on the ground that he had attached a posters with a former president to a housing fence, etc., the case holding that punishment of the Defendant’s act for violation of the former Punishment of Minor Offenses Act is within the scope necessary to maintain the order of community, and it does not violate the principle of prohibition of abuse as provided by the former Punishment of Minor Offenses Act, in full view of the following: (a) at the time when the Defendant’s control was placed, 55 posters had already been placed on another person’s wall; (b) approximately 150 posters were held; and (c) the Defendant had been holding approximately 300 posters; and (d) the distance where the posters were attached to the former president.

[1] Article 12(1) of the Constitution, Article 1(1) of the Criminal Act, Article 1 subparag. 13 of the former Punishment of Minor Offenses Act (Amended by Act No. 11401, Mar. 21, 2012; see current Article 3(1)9); Article 1 of the Punishment of Minor Offenses Act / [2] Articles 22 and 37(2) of the Constitution of the Republic of Korea, Article 1 subparag. 13 of the former Punishment of Minor Offenses Act (Amended by Act No. 11401, Mar. 21, 2012; see current Article 3(1)9); Article 4 of the former Punishment of Minor Offenses Act (Amended by Act No. 11401, Mar. 21, 2012); Article 1 of the Punishment of Minor Offenses Act

Defendant

Reinforcement Smoke et al.

Law Firm Lee & Lee, et al.

The sentence of sentence shall be suspended for the defendant.

While anyone is not allowed to display advertisements, etc. on another person’s house or other structure without permission, the Defendant put the form of “non-indicted 1 former president, who had worn water and locks while wearing 2.90,00 won,” on the wall of the house located in Seodaemun-gu Seoul (hereinafter omitted) from around 01:0 on May 17, 2012 to around 03:30, by using a blue tape, five copies of “non-indicted 1 former president, who puts 2.90,00 won on the wall of the house.”

1. Partial statement of the defendant;

1. Legal statement of the witness Nonindicted 2

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 1 Subparag. 13 (Selection of Fine) of the former Punishment of Minor Offenses Act (wholly amended by Act No. 11401, Mar. 21, 2012; hereinafter the same shall apply)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Suspension of sentence;

Article 59(1) of the Criminal Act (Discretionary punishment: Imposition of a fine of 100,000 won, and a fine of 50,000 won when unpaid shall be converted into one day, confinement in a workhouse for a period converted into one day, and the defendant has no criminal history, etc.)

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. The assertion that the applicable laws of this case violate the principle of clarity

Article 1 subparag. 13 of the former Punishment of Minor Offenses Act provides that a person who has posted or posted advertising materials, etc., or written, written or inscribed letters or pictures, etc., without permission, on the house or other structure of another person or organization, and a person who has moved, slided, or damaged signboards, other display materials, or structures of another person or organization without permission, shall be punished. However, the former part of the above provision does not impose any restrictions on the form of posting advertisements, etc. without permission, and thus, the part "advertisements, etc." in the above provision violates the principle of clarity by prescribing that all objects can be included therein.

B. assertion that the act of the defendant constitutes a justifiable act in order to realize the freedom of arts, or that punishment of the defendant constitutes abuse of the Punishment of Minor Offenses Act

The Defendant’s act of attaching the instant posters constitutes a justifiable act by realizing the freedom of arts. In addition, Article 4 of the former Punishment of Minor Offenses Act provides that “The application of this Act requires careful attention so as not to infringe the rights of the people, and this Act shall not be applied without permission for any other purpose beyond the original purpose,” thereby prohibiting abuse of the Punishment of Minor Offenses Act. In light of the purport of the aforementioned provision and the freedom of arts of the Defendant, the Defendant’s act should not be punished.

2. Determination

A. As to the assertion that the applicable laws of this case violate the principle of clarity

Whether a certain legal norm is clear or not depends on whether the legal norm provides a fair notice to a criminal so that he/she can understand the meaning of the law, whether the legal norm regulates a sufficient meaning to the institution that interpret and enforce the law, thereby excluding arbitrary interpretation or enforcement of the law, and whether the legal norm, in other words, securing predictability and exclusion from arbitrary enforcement of the law. The meaning of the legal norm is concrete not only by its language and text, but also by the interpretation method that comprehensively takes into account the legislative purpose, legislative intent, legislative history, and systematic structure of the legal norm. Thus, whether the legal norm violates the principle of clarity depends on whether it can obtain the interpretation standard that can reasonably grasp its meaning by the above interpretation method (see, e.g., Constitutional Court en banc Decision 2002Hun-Ba83, Jun. 30, 2005).

In full view of the following facts: (a) the Punishment of Minor Offenses Act was enacted for the purpose of maintaining the public order in society; (b) the former part of the provision of this case has the prior meaning of “fluorily, excessively,” or without permission”; (c) the provision of this case limits the object to “any other person or organization’s house or other structure” as above; and (d) the provision of this case limits not only the act of attaching or using advertisements, etc., but also the act of using or cutting letters or pictures on another person or organization’s house or other structure, but also punishing “the act of recklessly moving or cutting other person or organization’s signboard or other display or structure without permission,” and thus, the former part of the provision of this case does not violate the principle of no punishment without permission of other person or organization, and thus, it cannot be interpreted or executed as a legal institution to the extent that it does not violate the principle of no punishment without law.

B. As to the legitimate act or abuse prohibition argument

Article 22 of the Constitution provides that all citizens shall enjoy the freedom of arts. The freedom of art includes not only the freedom of artistic creation, but also the freedom of exhibition, display, or public performance of creative works to the general public. As in the instant case, the Defendant’s attachment of the posters in this case to the public is included in the freedom of artistic expression. On the other hand, the freedom of artistic creation should be guaranteed without any restriction. However, the freedom of artistic expression may be restricted by law if necessary for national security, maintenance of order, or public welfare pursuant to Article 37(2) of the Constitution.

In full view of the evidence mentioned above and the following circumstances revealed through the records of this case, namely, the Defendant’s act was put to the other person’s hushesium as stated in the facts constituting a crime in the judgment at the time when the Defendant was controlled, and the Defendant was holding approximately 150 posters in addition to the above 55 posters, and the distance on which the Defendant installed the posters had already reached approximately 300 meters centering around the annual post, even though considering all of the following circumstances, punishing the Defendant for the violation of the former Punishment of Minor Offenses Act appears to fall under the scope necessary to maintain the order of community, and thus, it does not constitute a violation of the principle of prohibition of abuse provided for in the former Punishment Act. Accordingly, the Defendant and the defense counsel’s assertion is rejected.

Judge Cho Han-hoon