2013 early 84 Request for adjudication on unconstitutionality

[Violation of the Political Funds Act]

H Ha

Law Firm Geum River, Attorneys Kim Won-won, and Stabilization

May 27, 2013

The request for adjudication on the constitutionality of the instant case is dismissed.

The request for a trial on the constitutionality of Articles 49(2)3 and 36(1) of the Political Funds Act shall be made.

1. Legal provisions applicable to the application;

○ Article 36 of the Political Funds Act (Revenue and Expenditure by Person in Charge of Accounting)

(1) Only a person in charge of accounting (in cases of a preliminary candidate for an election for public office, referring to the person in charge of accounting of the relevant election campaign office or election campaign liaison office; hereafter the same shall apply in this Chapter) may receive and disburse political funds of any political party (including a policy research institute and a political party election campaign office; hereafter the same shall apply in this Chapter), supporters' association, National Assembly member holding a supporters' association, a party competition, a candidate for an intraparty competitive election

1. Where an assistant accountant (limited to any person eligible to wage an election campaign for public office) delegated by a person in charge of accounting in writing to perform accounting, fixing the purpose of disbursement to the extent to know the details of such disbursement in general and the scope of the amount thereof;

2. Where expenditure is made by means of credit cards, check- cards and other means equivalent thereto the settlement account of which is a deposit account for expenditure of political funds reported pursuant to Article 34 under the administration and control of the person in charge of accounting.

Article 49 (Penalty Provisions concerning Offences related to Election Expenses)

(2) Any of the following persons in connection with election expenses shall be punished by imprisonment for not more than two years, or by a fine not exceeding four million won:

3. A person who has violated the provisions of Article 36 (1), (3) and (5), a person who has received or disbursed goods without going through the deposit account on which a report has been made in violation of the provisions of paragraph (2) of the same Article, and a person who has paid them by means of not depositing in the deposit account in violation of the provisions of paragraph (4) of the

2. Summary of reasons for the application;

The legal provisions of this case (hereinafter referred to as the "legal provisions of this case") were originally stipulated in the Public Official Election Act to which the statute of limitations for six months applies, but later, the Public Official Election Act and the Political Funds Act are amended, and the statute of limitations for five years is stipulated in the Political Funds Act to which the statute of limitations for five years applies.

If the legal provisions of this case were stipulated in the Public Official Election Act, the charges of this case against the defendant have been prosecuted because they were stipulated in the Political Funds Act. Accordingly, according to the results of the decision of this case, the defendant may be deprived of his freedom of body under Article 264 of the Public Official Election Act and his right to take public office may be deprived.

Therefore, the legal provisions of this case are unconstitutional laws that infringe the defendant's right to pursue happiness, equality, physical freedom, right to hold public office, right to be elected, right to vote, right to vote, and right to prompt trial.

3. Determination

A. The purpose of the Public Official Election Act is to ensure that elections are held fairly in accordance with the free will of the people and democratic procedures and to prevent irregularities related to elections. The Political Funds Act and the Public Official Election Act are aimed at ensuring transparency by guaranteeing the proper provision of political and funds, disclosing the details of revenue and expenditure, and preventing irregularities related to political funds. Thus, the legislative purpose of the Political Funds Act and the Public Official Election Act differs.

(2) In addition, the provisions of the Public Official Election Act, which were originally revised on August 4, 2005, were deleted from the Public Official Election Act and stipulated in the Political Fund Act. The purpose of the amendment is to establish and supplement various institutional devices to expand the political freedom of the people, to enhance the fairness and transparency of the political system, to expand the opportunities for the people to participate in the election, to improve regulations on election campaign methods, and to create a new electoral climate such as contributing to the realization of the policy election, thereby achieving advancement of our political culture. The amendment of the Political Fund Act is to establish the foundation for the sound operation of political funds by securing the stable financing and transparency of political funds, and to improve and supplement some deficiencies that have been revealed in the operation of the system, such as integrating and extinguishing the election expenses and the disbursement procedures dualizing with political funds.

(3) On the other hand, whether to apply the short-term statute of limitations to the same offense as the instant case belongs to the scope of the legislative discretion of the legislator.

(4) The theory of lawsuit

The legislative purpose of this case’s legal provision is to guarantee the appropriate provision of political funds, ensure transparency by disclosing the details of revenue and expenditure, and prevent the denial of political funds. In addition, in light of the purpose and purpose of amendment of the Political Funds Act, the right to equality, the right to pursue happiness, the right to physical freedom, and the right to prompt trial shall not be infringed on, on the ground that the punishment provision of this case does not apply for the short-term statute of limitations for six months.

B. It is apparent in light of the content of the Act that the legal provision of this case does not directly restrict the right to hold a public office, the right to hold a public office, the right to be elected, and the right to vote. However, given that a person who received and disbursed election expenses without a person in charge of accounting is punished pursuant to the legal provision of this case, and thus, indirectly restricts the person who received and disbursed election expenses, the right to hold a public office or the right to be elected is not the right to be guaranteed as a matter of course to the person who received and disbursed the election expenses illegally, and rather, limiting the actor’s right to hold a public office or the right to be elected does not infringe on the essential contents of the election system, which is the basis of representative democracy, in that it is necessary for the proper operation of the election system, which is the basis of representative democracy, and thus, it does not infringe on the right to hold a public office or the right to be elected for a public office or the right to be elected for a public office, with the exception that the statute of limitations for a short term of six months is not applied to the act in violation.

3. Conclusion

Therefore, the applicant's application for adjudication on the unconstitutionality of the Act is dismissed as it is without merit. It is so decided as per Disposition.

May 27, 2013

Judge Kim Jong-soo