[1] The purport of punishing a person who conducts an election campaign on the election day under Article 254(1) of the former Public Official Election Act

[2] The purport of uniformly punishing a person who conducts an election campaign without leaving the type of election campaign before close on the election day under Article 254(1) of the former Public Official Election Act / Whether the said provision excessively infringes on the freedom of election campaign or violates the principle of proportionality (negative)

[3] Where an amendment to a law after a crime did not constitute a crime, but the Addenda of the amended law provides that "in applying penal provisions to an act before the enforcement of the amended Act, the previous provision shall govern" constitutes a ground for acquittal (negative)

[4] Even if it was allowed to conduct an election campaign by transmitting text messages on the election day after being amended by Act No. 14556, Feb. 8, 2017, whether Article 254(1) and Article 59 subparag. 2(a) of the former Public Official Election Act should be applied pursuant to Article 5 of the Addenda to the said Act, which is the previous provision, to the acts before the enforcement of the said Act (affirmative)

[1] Article 37(2) of the Constitution of the Republic of Korea; Articles 59 and 254(1) of the former Public Official Election Act (Amended by Act No. 14556, Feb. 8, 2017); Article 37(2) of the Constitution of the Republic of Korea; Article 254(1) of the former Public Official Election Act (Amended by Act No. 14556, Feb. 8, 2017); Article 1(2) of the Criminal Act; Article 326 subparag. 4 of the Criminal Procedure Act / [4] Article 1(2) of the Criminal Act; Articles 59 subparag. 2 and 254(1) of the former Public Official Election Act; Articles 59 subparag. 2 and 254(1) of the former Public Official Election Act; Article 254(1) of the Addenda (Amended by Act No. 14556, Feb. 8, 2017); Article 36 subparag. 4 of the Criminal Act

[1] [2] Supreme Court Decision 2007Do3468 Decided October 11, 2007 / [3] Supreme Court Decision 2001Do6741 Decided February 26, 2002

Defendant

Defendant

Law Firm Gyeong, Attorneys Kim Ji-hyung et al.

Busan High Court (Chowon) Decision 2016No271 decided October 12, 2016

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 59 of the former Public Official Election Act (amended by Act No. 14556, Feb. 8, 2017; hereinafter the same) allows election campaigns to be carried out by the day immediately before the election day, and Article 254(1) of the former Public Official Election Act punish those who have campaigned on the election day. This is likely to have a direct impact on the choice of voters, and thus, it is likely that the election campaigns should be carried out indiscreetly by candidates, so that the exercise of voting rights can be carried out in order by maintaining the peace and coolingness of election campaign on the day of election, and it cannot be deemed that there is a violation of the former Public Official Election Act’s freedom to exercise voting rights in Korea, taking into account the following: (a) Article 59 of the former Public Official Election Act (amended by Act No. 14556, Feb. 8, 2017; hereinafter the same shall apply).

In addition, Article 254(1) of the former Public Official Election Act imposes punishment on a person who conducts an election campaign without regard to the type of the election campaign before the close of the election day. This is because the election campaign may interfere with the right choice of voters or impair the peace of voting progress, and thus, its illegality is more severe than the ordinary prior election. Therefore, Article 254(1) of the former Public Official Election Act provides that all of the election campaigns are uniformly punished, and it cannot be said that it excessively infringes on the freedom of election campaign or violates the principle of proportionality (see Supreme Court Decision 2007Do3468, Oct. 11, 2007).

Therefore, we cannot accept the argument that Article 254 (1) of the former Public Official Election Act violates the Constitution.

2. In the event that an act does not constitute a crime due to the amendment of the law after the crime, the new law shall apply (Article 1(2) of the Criminal Act). This falls under the case where a sentence is abolished following the amendment or repeal of the law after the crime (Article 326 Subparag. 4 of the Criminal Procedure Act). However, even in this case, where a transitional provision provides that “in applying penal provisions to acts before the enforcement of the amended Act, the previous provisions shall govern” in the Addenda of the amended Act, etc., the former Act shall apply to the act at the time of the former Act. Thus, it cannot be said that the amendment of the law does not constitute a crime or that the sentence was abolished, and thus, it does not constitute a ground for acquittal (see Supreme Court Decision 2001Do6741, Feb. 26, 200

Article 254(1) and Article 59 Subparag. 2 of the former Public Official Election Act prohibit election campaign by sending text messages on the election day. However, the foregoing provision was amended to allow election campaign by sending text messages on the election day on February 8, 2017. However, even so, Article 5 of the Addenda to the said amended Act provides that “the application of penal and administrative fines to acts before this Act enters into force shall be governed by the previous provisions.” Thus, Article 254(1) of the former Public Official Election Act shall apply to this case committed before the enforcement of the said Act. Therefore, since punishment for a violation of Article 254(1) of the former Public Official Election Act, it cannot be said that the sentence for a violation of Article 254(1) of the former Public Official Election Act, which is applicable to this case, should not be deemed to have been abolished, the grounds for appeal on acquittal should also be accepted.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)