Article 250 (1) of the Public Official Election Act, Article 250 (1) of the Public Official Election Act, etc.

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Han Law Firm, Attorney Han-han

Attorney Hong-ju, Park Il-il, Gaon

Kim Jong-Speaker's Legal Office

Attorney Son Ji-yol, Yellow-gu, Park Jong-chul

Supreme Court Decision 2009Do679 Violation of the Public Official Election Act

Of the provisions of Article 250 (1) of the Public Official Election Act (amended by Act No. 7189 of March 12, 2004), where "in the case of inserting the academic background, where the academic background is not published in the manner provided for in the provisions of Article 64 (1)", the part concerning the case where the academic background is completed in a foreign educational course equivalent to the regular academic background and the period of the study is not indicated, and where the academic background is inserted in a foreign educational course equivalent to the regular academic background in Article 64 (1) of the Public Official Election Act, the part concerning

1. Case summary and the object of the trial;

A. Case summary

In the 18th election of National Assembly members, the claimant was prosecuted on charges of “a person violates the Public Official Election Act by publishing false facts about candidate’s career, etc. by publishing a foreign curriculum equivalent to the regular academic background without stating the required period of study” (Seoul Southern District Court Decision 2008No2861), and appealed to the Seoul Southern District Court (Seoul Southern District Court Decision 2008No2861), but the appeal was dismissed (Seoul High Court Decision 2008No2861). The claimant filed an appeal with the Supreme Court against the part of Article 250(1) and Article 64(1) of the Public Official Election Act, which is the basis of punishment during the proceeding of the final appeal, on May 14, 2009, the claimant applied for an adjudication on the unconstitutionality of law, but the Supreme Court dismissed the application on May 20, 2009, stating the period of education in the foreign language equivalent to the regular academic background.” Article 250(1)6(1) of the Public Official Election Act.

(b) Object of adjudication;

Article 250 (1) of the Public Official Election Act (amended by Act No. 7189 of Mar. 12, 2004) provides that "where an academic background is not published in the manner provided for in the provisions of Article 64 (1), where an academic background is not published in the manner provided for in the provisions of Article 64 (1)", part of the case where the academic background has been completed in a foreign educational course equivalent to the regular academic background and the period of the study has not been stated shall be posted, and the academic background completed in a foreign educational course equivalent to

In the case of the Public Official Election Act, the part on which the term of study is stated (hereinafter “instant provision”). (The history of the provision on which a trial is conducted is based on whether or not the provision on the instant legal provision was amended in particular in Articles 64(1) and 250(1) of the Public Official Election Act. As the Public Official Election Act was amended by Act No. 9974 on January 25, 2010, Article 64 amended the portion on the “mail” as “election poster,” but there was no change in the regulatory content of the provision on the instant legal provision).

【Legal Provisions Applicable to Adjudication】

Public Official Election Act (amended by Act No. 7189 of March 12, 2004)

Article 250 (Publication of False Facts) (1) Any person who publishes or makes another person publish or has another person publish any false fact about the place of birth, status, occupation, career, property, personality, conduct, activity, organization to which he/she belongs, etc. of a candidate, his/her spouse, lineal ascendant or descendant, lineal ascendant or descendant, or sibling (including a person who intends to become a candidate; hereinafter the same shall apply in this Article) in favor of a candidate (including a person who intends to be a candidate; hereinafter the same shall apply in this Article) by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, etc. for the purpose of being elected or having another person be elected or has another person carry any false fact with the intention of distributing a false fact, shall be punished by imprisonment for

(1) The name (referring to the printing order of a political party or candidate to be printed on the ballot paper pursuant to Article 150; hereinafter the same shall apply) of a candidate (referring to the printing order of a political party or candidate to be printed on the ballot paper pursuant to Article 150; hereinafter the same shall apply) and the name (the independent candidate shall indicate "unaffiliatedd") of the political party to which a party-recommended candidate belongs, and career (where academic background is inserted, the regular academic background and other foreign curriculum corresponding thereto shall be indicated

In such cases, where a regular academic background is inserted, the name of the school at the time of graduation or completion (in cases of posting the regular academic background, the period of study shall be stated together) shall be stated, and where any academic background which has completed a foreign educational course corresponding to the regular academic background is inserted, the name of the curriculum, the period of study, and the name of the degree at the time of acquisition of the degree, and where such academic background is inserted, the final academic background of the regular academic background and the academic background completed in a foreign educational course may be stated only on the academic background submitted pursuant to the provisions of Article 49 (4) 6; hereinafter the same shall apply), the current academic background, policies, and other matters necessary for publicity of the political party concerned (in cases of the election of the proportional representative National Assembly members, the name of the candidates for proportional representative City/Do council members, in cases of the election of the proportional representative City/Do council members of local constituency, the name of the candidates for proportional representative autonomous Gu/Si/Gun council members of local constituency shall be stated, and in case of posting the population of 500 persons other than the candidate, the number of 100 pages.

2. The claimant's assertion, the grounds for dismissing an application filed for adjudication on the constitutionality of a law by a court, and opinions of interested agencies;

A. The claimant's assertion

(1) Article 250(1) of the Public Official Election Act provides that "it shall not be published in the manner provided for in Article 64(1)." Article 250(1) provides that "The subject of punishment shall not be stated directly, and Article 64(1) provides that where a foreign educational course equivalent to that of a regular academic background is published, the term of study shall also be stated in the overall title."

It is not easy to understand that it is not possible to give a significant meaning, and can not easily predict what is subject to punishment from the people who are the criminals.

The meaning of “false fact” shall be limited to “the fact that is not consistent with the truth and that has the possibility of making an elector correct judgment on a candidate to the extent that it can be affected by the accurate judgment,” and the explanation of the universal title that is stated in the false fact shall be limited to the grammatic interpretation scope of “the false fact.” However, the fact that the legal provision of this case was not published in the manner provided for in this case may not be included in the false fact even if it conforms to the objective fact.

(2) Although there is no substantial difference between the study period of the regular academic background, such as the establishment of a master’s degree course in the domestic curriculum, it is arbitrary discrimination to require a domestic curriculum to be published only for the overseas curriculum without imposing a duty to publish the study period. In comparison with the case of a domestic curriculum, it is arbitrary discrimination to require a person who has completed a foreign curriculum to publish the study period only when he/she retires.

(3) Although a person who has completed a foreign educational course equivalent to a regular academic background needs to prove the completion of the educational course through the submission of a certificate of academic background, it is against the principle of proportionality that imposes an additional duty to publish the period of education and imposes an excessive criminal punishment to enforce such a duty is against the appropriateness of the means and minimum intrusion, and is subject to excessive punishment compared to the responsibility of the actor.

B. Reasons to dismiss the court's request for adjudication on constitutionality of law

Articles 250(1) and 64(1) of the Public Official Election Act provide that the term of study shall be stated in a foreign educational course equivalent to the regular academic background and punishment if the same is violated. However, the mere fact that the term of study is not included in the prior meaning of “false” or that the portion of which the term of study is included in a false fact is entered in the comprehensive title does not constitute a violation of the principle of no punishment without the law merely because it is entered in the comprehensive title. In addition, the legislative intent of the above provision of the law is to stipulate the term of study in a domestic regular academic background, even if the term of study is not stated in the domestic regular academic background, it can be easily recognized by the relevant law if it is stated in the department, school, and the term of education or the degree of acquisition can be easily recognized by the relevant law. In the case of a curriculum completed in a foreign country, the name of education or the degree of education can not clearly understand the meaning of the holder of the right of education by the punishment, and it can be recognized that the right of equality of the candidate is infringed between the basic rights and the public interest.

(c) Opinions of the Minister of Justice;

The legal provisions of this case also use terms that can be easily understood only with grammatic interpretation, citing other provisions in order to prevent the excessive expansion of the provisions in legislative and technical terms, and in particular, since the overall protection section of Article 250(1) enhances clarity as an item of agenda, it does not violate the principle of clarity. According to the academic system of each country, the qualifications for acquiring degrees, the type of degrees, the period of study, the degree of difficulty, etc. are different from each other.

It is necessary to provide accurate information to the elector for the entry of the education period for the elector. If a foreign educational background is inserted, it cannot be said that the principle of proportionality is violated even if it is enforced to state the education period in punishment.

(d) Opinions of the Chairperson of the National Election Commission;

The grounds and substitution for the dismissal of the court's motion for adjudication on constitutionality are the same.

3. Determination

A. Violation of the principle of clarity of the principle of no punishment without law

(1) 법치국가 원리의 한 표현인 ‘명확성의 원칙’은 기본적으로 모든 기본권제한입법에 대하여 요구되는 것인바, 규범의 의미내용으로부터 무엇이 금지되는 행위이고 무엇이 허용되는 행위인지를 수범자가 알 수 없다면, 법적 안정성과 예측가능성은 확보될 수 없게 되고, 또한 법 집행당국에 의한 자의적 집행을 가능하게 할 것이기 때문이다(헌재 1998. 4. 30. 95헌가16 , 판례집 10-1, 327, 341-342). 이와 같은 명확성의 원칙은 특히 처벌법규에 있어서 엄격히 요구되는데, 다만 그 구성요건이 명확하여야 한다고 하여 입법권자가 모든 구성요건을 단순한 의미의 서술적인 개념에 의하여 규정하여야 한다는 것은 아니고, 자의를 허용하지 않는 통상의 해석방법에 의하더라도 당해 처벌법규의 보호법익과 그에 의하여 금지된 행위 및 처벌의 종류와 정도를 누구나 알 수 있도록 규정되어야 한다는 의미로 파악되어야 할 것이며, 처벌법규의 구성요건이 다소 광범위하여 어떤 범위에서는 법관의 보충적인 해석을 필요로 하는 개념을 사용하였다고 하더라도 그 점만으로 헌법이 요구하는 처벌법규의 명확성에 반드시 배치되는 것이라고는 볼 수 없다.(헌재 1993. 3. 11. 92헌바33 , 판례집 5-1, 29, 47-48；헌재 1994. 7. 29. 93헌가4 등, 판례

집 6-2, 15, 32-33；헌재 1995. 5. 25. 93헌바23 , 판례집 7-1, 638, 647-648；헌재 2000. 11. 30. 99헌바95 , 판례집 12-2, 298, 310 참조; 헌재 2002. 4. 25. 2001헌바26 , 판례집 14-1, 301, 321-322).

(2) The claimant asserts that Article 250(1) of the Public Official Election Act does not directly stipulate the act subject to punishment, and that Article 64(1) of the Public Official Election Act provides that "it shall include the case in which the content of the provision is not clear," and that Article 64(1) of the Public Official Election Act provides "the term of school years" in the case at issue, so it is not possible for the public to easily predict the subject of punishment. However, in the provision of punishment, it is a common legislative technique to divide the provisions of the constituent elements and the provision of punishment into separate provisions. However, if the same contents are repeatedly provided in different provisions, it is a universal method to adopt the provisions that already stipulate the same contents, and it cannot be deemed that the contents of the provision are unclear merely because the act subject to punishment does not directly stipulate the provisions of the same Act and used the provisions already provided in other provisions in the same Act. In addition, it is difficult to accept the argument that some of the provisions within the scope of the law are merely a mere general technical issue, and it does not have an objective meaning of the general provision.

(3) In addition, the claimant's "false facts" in Article 250 (1) of the Public Official Election Act refers to "matters not consistent with the truth and require the elector to make accurate decisions on the candidates."

Inasmuch as it means that the contents of education per se are stated to the extent that it can be said that false facts are posted even if the contents of education per se are not stated in the legal provision of this case, i.e., the method prescribed in the legal provision of this case, i., the period of education, it cannot be deemed that false facts are posted. Thus, the legal provision of this case argues that punishing the contents of education by including the false facts in such a publication of education violates the principle of clarity.

However, Article 250(1) of the Act provides that "A false fact (including a case in which the academic background is not published by the method under the provisions of Article 64(1) in the case of posting it)" and Article 64(1) provides that "in the case of posting an academic background completed by a foreign educational course equivalent to regular academic background, a term of school c.i.e., in the case of posting it, c., in which the academic background completed by a foreign educational course corresponding to regular academic background is recorded, c. c. c. c. c. c.," and it is clear that "a case in which a foreign educational course completed by a foreign educational course is stated and the period of study is not stated" and thus, the meaning of the provision of the Act of this case is "a case in which a foreign educational course completed by a foreign educational course is stated and it is not included" in the general concept and meaning of the provision of the Act of this case. It is clear that the meaning of the provision of the Act of this case is an issue where the provision is prohibited and punished.

(4) On the other hand, when examining the cases in which the applicant stated the school period pursuant to the legal provisions of this case, the method of “○○○○○-○○○○○○○”, “○○○-○○○○○○”, and “○○○-○○○○○”, etc.

There are different arguments in Section B, which is due to the uncertainty of the legal provisions of this case. However, the above difference pointed out by the claimant is merely a difference in the way of a specific expression stating the period of study, and it cannot be a ground to show the uncertainty of the legal provisions of this case in that it is a case where the term of study should be stated in accordance with the legal provisions of this case.

Furthermore, according to the guide book on the election campaign guidance for the election party and preliminary candidate for the 18th National Assembly member, which was issued by the election commission, the claimant may be recognized as stating the period of education only when he retires when he enters a foreign educational background. This circumstance also supports the uncertainty of the legal provision of this case. However, it is obvious in itself that the provision of this case does not require an explanation of the election commission, and that the provision of this case is not unclear because it is unclear that the contents introduced to the book issued by the election commission are unclear.

(5) In short, the legal provision of this case does not violate the principle of clarity of the principle of no punishment without law, since the meaning of the legal provision of this case is apparent that “if the academic study completed in a foreign educational course equivalent to the ordinary academic background is stated, it shall be punished.”

B. Whether equality is violated

(1) In addition to the general principle of equality (Article 11(1)), the Constitution provides for the principle of equality in elections (Articles 41(1) and 67(1) and also guarantees the equal opportunity in election campaigns (Article 116(1)). However, the principle of equal opportunity in election campaigns does not require absolute and uniform equality or equal opportunity, but is reasonable grounds.

It should be understood that only prohibits arbitrary discrimination or discrimination (see, e.g., Supreme Court Decision 96Hun-Ma94, Oct. 30, 1997; 9-2, 523, 531; 97Hun-Ma372, Aug. 27, 1998; 10-2, 461, and 475, Nov. 26, 2009; 158Hun-Ma14, Public Notice No. 158, 2203, 208).

(2) The claimant asserts that, even in the domestic regular academic background, it is arbitrary discrimination to allow only those who have completed foreign educational courses to state the period of study, even though the period of study is diversified due to the establishment of a master's degree course for one year or one year and six months.

In the case of domestic regular academic background, even if the period of study is different, the period of study can easily be grasped through information about the name and name of the school and the contents of the relevant laws and regulations.On the other hand, the curriculum can be basically different for each country, and in particular, various educational systems can exist for each country, and even for each country, it can be different for each foreign school. Therefore, it is difficult to understand the period of study only by the name and degree of the school, and it is not easy to confirm it through the relevant laws and regulations of each country.

Therefore, it is not unreasonable to require that the study period be stated only for the career completed by a foreign country equivalent to the domestic regular academic background without requiring the statement of the study period for the domestic regular academic background.

(3) Meanwhile, the claimant asserts that Article 64(1) of the Public Official Election Act provides that a person who has completed the course of a domestic regular curriculum shall state the period of study for the person who has completed the course of a foreign regular curriculum shall also be treated as the person who has completed the course of a study as the person who has retired from the course of a foreign regular curriculum, thereby infringing the right of equality.

However, even if a domestic regular curriculum is retired, the period of study can be determined for each individual (e.g., a person who immediately retires after entering school, but a person who retires before leaving school). Therefore, if the period of study is not simply stated, the difference in academic achievement can not be compared according to the difference in the period of study.

It is not because a person who has completed a foreign regular curriculum like a retirement from the domestic regular curriculum is equally assessed in all respects against a person who has completed a foreign regular curriculum, but it is only treated at the same time in that the entry of the period of study is necessary for comparison of academic achievement. Therefore, it cannot be said that it is unreasonable discrimination.

(4) Therefore, the legal provision of this case cannot be deemed to infringe the claimant's right to equality.

C. Whether the principle of proportionality is violated

(1) In principle, the issue of which punishment is to be imposed on a certain act as a crime is that the legislators should recognize a wide range of legislative discretion or freedom of formation as matters concerning the legislative policies of the State, which should be determined by comprehensively considering our history and culture, the current situation at the time of legislation, the general sense of values of the people or legal sentiment of the people, the actual state and nature of the crime, the legal interests protected by the law, and the effect of crime prevention. Therefore, since the statutory punishment for a certain crime is too harsh compared to the nature of the crime and the responsibility of the offender, it would lose balance among the whole criminal system, thereby going against the principle of equality under the Constitution in relation to another crime, or deviates from the degree necessary to achieve the original function and purpose of the punishment for such a type.

As a result, unless the legislative discretion is assessed to be contrary to the principle of proportionality or the principle of excessive prohibition derived from Article 37(2) of the Constitution, and the legislative discretion is arbitrarily exercised contrary to the provisions of the Constitution or the principles of the Constitution, it shall not be an issue of violation of the Constitution, whether the issue of whether the statutory punishment is high or low, or whether the legislative policy is proper (see, e.g., Supreme Court Decision 90HunBa24, Apr. 28, 1992; Supreme Court Decision 4, 225, 230-231, May 28, 1998; Constitutional Court Decision 10-1, 640, 648; Constitutional Court Decision 10-1, 648; Constitutional Court Decision 97HunBa23, Jul. 16, 1998; Supreme Court Decision 10-2, 102, 263; 263HunBa28, Jun. 18, 2009>

In addition, whether to impose sanctions, such as fines for negligence, or to impose punishment on any act of violation of laws or regulations, is basically a matter of legislative discretion, considering all the circumstances (see, e.g., Supreme Court Decision 6-1, 281, 303, Apr. 28, 1994; Supreme Court Decision 6-1, 281, 303; Constitutional Court Decision 96Hun-Ba83, May 28, 1998; Supreme Court Decision 10-1, 624, 635-636; Constitutional Court Decision 2005Hun-Ma373, Apr. 24, 2008; Supreme Court Decision 200-1Sang, 626, 650, etc.).

(2) Determination on the meaning of a candidate’s academic background in selecting a candidate, the degree of academic background and the period of education may have a negative impact on the right choice of the candidate. Thus, determination on whether to punish an act of not stating the period of education in a foreign educational course equivalent to regular academic background, and a certain degree of statutory punishment can be deemed as basically belonging to the freedom of legislative formation, and thus, it cannot be said that the legislative decision on the matter is unconstitutional unless it is recognized that the legislative decision on the matter is considerably unreasonable.

(3) It is not necessarily proportional to or dependent on a person’s knowledge or ability during the period of study, and it cannot be an absolute criteria for evaluating the candidate’s quality as a candidate’s high or low academic background. However, academic background in our society is not denied that it serves as an important criteria for assessing the candidate’s ability and qualities (see Constitutional Court Decision 2009Hun-Ma14, Nov. 26, 2009; Supreme Court Decision 158, 2203, 2208, and 2208).

A candidate who wishes to obtain maximum positive evaluation from the right to exercise his or her ability to know and actively the favorable part compared to other candidates during his or her work experience. However, the same applies to the academic achievement. However, it is not easy for a candidate to introduce falsely the academic achievement which is not related to himself or herself, as it is proved through objective data. Therefore, it is highly likely for a candidate to introduce the academic achievement in a way that he or she can obtain the maximum and unfavorable evaluation of his or her academic achievement. However, in the case of introducing the academic achievement on domestic curriculum, only the introduction to the extent that “any school graduate” or “a school has acquired any degree” would objectively make it possible to compare and evaluate the academic achievement among the candidates, and, in the case of introducing the academic achievement on foreign curriculum, it is not easy for a candidate to record only the academic achievement on the name of a school or academic degree, and it is not easy for a foreign school or the academic achievement among the candidates, even if it differs from the academic achievement of a foreign country.

If there is a big difference in the period of the study, the evaluation of the academic background may change.In this situation, the act that the candidate does not intentionally state the period of the study while introducing the academic background of a foreign educational course may make it difficult for the candidate to make an objective comparison and evaluation of the academic background and eventually affect the choice of the right holder.

(4) Therefore, in a case where the legal provision of this case inserts the academic achievement completed in a foreign educational course equivalent to the regular academic achievement, it is difficult to regard that the period of education should be stated, and that the same punishment as the case where the academic achievement is falsely stated with respect to the act of violating it is considerably unfair. The statutory penalty is “a imprisonment for not more than five years or a fine not exceeding 30 million won,” and its upper limit cannot be deemed to be less than that of the offender, but it is possible to impose minor punishment depending on a case without limiting the lower limit, and therefore, it cannot be deemed that it is excessively harsh punishment than the offender’s liability to the extent that it has lost a significant balance in the entire criminal system.

(5) Therefore, the legal provision of this case does not violate the principle of proportionality.

4. Conclusion

Therefore, the legal provision of this case is not in violation of the Constitution, and it is so decided as per Disposition. This decision was delivered with the assent of all the participating Justices, except there is a dissenting opinion by the civilian or military judge as set forth in the 5th below.

5. Dissenting Opinion by Justice Min Il-young and Justice Kim Jong-young

We agree with the majority opinion that the legal provision of this case, i.e., "a foreign educational course completed in a foreign educational course equivalent to the ordinary academic background, and did not state the period of the study."

Sector Inasmuch as it is determined that “A” violates the Constitution against the excessive prohibition doctrine, I express my dissenting opinion as follows.

(a) Guarantee of freedom of election campaign and criteria for examination;

Today’s election under democratic politics, which is a principle of representative democracy, is essential for citizens’ participation in political affairs, and the citizens, who are sovereigns, freely determine their political intentions and freely express their political opinions, thereby constituting a democratic society and making them flive. As such, participation in the election process, which has the meaning of exercising sovereign rights or exercising political rights, should be guaranteed to the maximum extent possible so that they can freely participate in as a matter of principle. In order to exercise the right to vote properly, the exchange of information on candidates’ freedom of election campaign is inevitably required. Thus, the freedom of election campaign is an important element of the presumption of exercising the right to vote or the right to vote (see Constitutional Court Decision 16-1, 541, 548-50, Apr. 29, 2004).

In light of the importance of freedom of election campaign protected as fundamental rights under the Constitution, even in cases where the freedom of election campaign is restricted by law in order to guarantee the fairness of election and to prevent election campaigns, whether it goes beyond the limit should be determined by strict criteria for review. Furthermore, in light of the nature of freedom of election campaign in the form of freedom of political expression, whether the minimum restriction is chosen in accordance with the criteria for determining the restriction on freedom of expression in light of the nature of freedom of election campaign (see Constitutional Court Decision 2005HunBa32, Oct. 30, 2008; 145, public bulletin 1408, 1416).

B. Whether the principle of excessive prohibition is violated

(i) Appropriateness of the legitimacy and means of the objectives;

The legislative purpose of the legal provision of this case is to ensure the fairness of election by providing the right holder with accurate information about candidates and accurate information about the candidate's educational background, and ultimately, to ensure the fairness of election. In particular, in cases where the academic background completed in a foreign educational course equivalent to the regular academic background is stated, it is necessary to provide accurate information about the candidate's foreign educational background by allowing the holder to state the name of the curriculum and the name of the acquisition degree in

In order to ensure the fairness of elections to the maximum extent possible, such legislative purpose is justifiable. Furthermore, in the case of domestic regular academic background, it can be easily understood through information such as school name, academic degree name, and related statutes even if the period of education is not specified. On the other hand, in the case of foreign curricula, it is difficult to clearly understand the meaning of the curriculum or the degree of acquisition only because the name of the curriculum or the name of the acquisition degree is different from that of the curriculum in Korea.

(2) The minimum of the infringement

(A) “The term of study” of the foreign educational academic background

The legal provision of this case limits the scope of "a case equivalent to the domestic regular academic background" among the academic background completed in a foreign educational course. Here, "regular academic background" refers to the academic background on the school education system, which is strictly managed and controlled with respect to the kinds, establishment, management, teachers, curriculum, academic achievement evaluation, and competence certification of schools under the Elementary, Secondary and Secondary Education Act and the Higher Education Act (see Constitutional Court Order 99Hun-Ba95 delivered on November 30, 200, Supreme Court Decision 12-2, 298, 312 delivered on November 30, 200, Supreme Court Decision 12-2, 298, 312). Accordingly, in order to determine whether a case constitutes "a case equivalent to the foreign academic background completed in a foreign educational course equivalent thereto", the qualification

In comparison with the domestic regular academic background, comprehensively considering the procedure for certification of capacity, etc., and in particular, regarding the period of education, a thorough examination is conducted as to whether the foreign educational academic background, carried by the candidate, is a foreign educational academic background equivalent to the regular academic background (see Supreme Court Decisions 2007Do5953, Sept. 20, 2007; 2009Do2457, May 28, 2009).

In addition, in order to grasp the meaning of the above foreign educational academic background and the degree of difficulty in completing the educational course, the person with the right to attend the educational course is more accurate and necessary information than the degree of study of the candidate in the relevant educational course, i.e., the degree of study of the candidate in the relevant educational course.

As can be seen, the foreign educational achievement under the legal provision of this case is strictly limited to the level corresponding to the domestic regular academic achievement, and it requires the name of curriculum and the name of acquisition to be stated. Therefore, it is difficult to view that the term “the term of study” has a big meaning.

Furthermore, the Public Official Election Act requires a candidate to submit a certificate of academic achievement certifying the specific contents of the academic achievement including the period of study (Article 64(1) of the Public Official Election Act). Therefore, there is no reason to avoid the entry of the "period of study" on propaganda posters, etc.

(b) Unwritten statements and publication of false facts during the study period;

The legal provisions of this case punish the candidate who did not enter the study period in campaign posters as “a punishment of imprisonment for not more than five years or a fine not exceeding 30 million won” on the same basis as the candidate publicly announces false facts about the campaign posters.

As to this, the majority opinion does not state the “period of school” in the same manner as the candidate’s educational background.

In that it is difficult to make objective evaluation of candidates difficult, thereby hindering the accurate judgment of the right holder of the candidate, it argues that both parties can be equally assessed on a normative basis because it does not differ from the act of falsely recording matters concerning academic attainments.

In light of the following facts: (a) in a case where the right of legislative discretion is deemed to have been arbitrarily exercised against the constitutional provisions or the constitutional principles by clearly deviating from the necessary degree in achieving the original function and purpose of punishment for such type of crime, in light of the actual condition and nature of the crime, severity of the crime, the responsibility of the actor for such act, and the protected legal interest and interest of the penal provisions, etc., the legislative discretion should be deemed to be contrary to the Constitution (see, e.g., Supreme Court Decisions 90HunBa24, Apr. 28, 1992; 4, 225, 229-232, Nov. 27, 2003; 202HunBa24, Nov. 24, 2003; 15-2, 242-243, 252-253, etc.).

After the revision of January 13, 1997, the Public Official Election Act prohibits the publication of the candidate’s non-regular academic background itself, while allowing the publication of the candidate’s non-regular academic background in the case of a foreign educational academic background equivalent to the regular academic background, but providing detailed details thereof. This is because, in the case of a foreign educational academic background similar to the regular academic background, legislators have determined that allowing the publication thereof to be more helpful for securing the fairness of election rather than prohibiting the publication thereof. In other words, the reason for prohibiting the publication of the non-regular academic background is to prevent the excessive evaluation of the candidate’s academic background and block negative effects by preventing the excessive evaluation of the candidate’s academic background, while the provision of this case is to provide more accurate information on the candidate’s academic background and increase positive effects. In the case of violation of the provision of this case, the aforementioned positive effect is somewhat different between the two.

However, it is difficult to say that the securing of fairness in the election would be hindered.

As can be seen, it is different from the act of inserting the non-regular academic background or the act of falsely stating matters concerning the academic background in the entries of foreign educational academic background, and thus, it is against the principle of proportionality of responsibility and punishment.

(C) Violation of the minimum infringement principle

Ultimately, in light of the importance of “the period of study” for securing the fairness of election and the degree of punishment for “not writing the period of study”, punishing the legal provision of this case as “a fine not exceeding five years or a fine not exceeding 30 million won, such as publishing other false facts” cannot be deemed as imposing excessive punishment contrary to the principle of minimum infringement.

(3) Balance of legal interests

As seen earlier, the fairness of election obtained by forcing a candidate to enter “the period of study” in the posting of a foreign educational academic background corresponding to the candidate’s regular educational background is unclear and specific, whereas the candidate is punished as a crime of publishing false facts under the Public Official Election Act solely on the ground that the candidate omitted the entry of “the period of study”, and thereby, the disadvantage is considerable, such as being connected to the invalidation of election. Therefore, the balance between the public interest and private interest is difficult to be recognized.

C. Sub-decision

Therefore, the legal provision of this case is against the Constitution because it infringes on the freedom of the claimant's election campaign against the principle of excessive prohibition under the Constitution.

March 25, 2010

Chief Justice Lee Han-hoon

Judges Lee Dong-chul

Justices Cho Jong-dae

Justices Kim Jong-ok

Justices Kim Jong-dae

Justices Park Jong-chul

Movement of Justices

Justices Jo Young-young

Justices Song Du-hwan