[1] Criteria for determining whether it goes against the principle of clarity of punishment laws required by the principle of no punishment without law

[2] Meaning and scope of “a person who intends to become a candidate” under Article 113 of the Public Official Election Act / Whether the part of “a person who intends to become a candidate” under Articles 113(1) and 250(1) of the Public Official Election Act violates the principle of clarity (negative), and whether Article 257(1)1 of the Public Official Election Act violates the principle of excessive prohibition (negative)

[3] Whether a violation of the principle of clarity under Article 250 (1) of the Public Official Election Act infringes on the freedom of political expression, freedom of election campaign, right to participate in public affairs, etc. (negative)

[4] The purport of Article 12(2) of the Constitution guaranteeing the right to refuse to make statements as a fundamental right

[5] Whether the part of "act" under Article 250 (1) of the Public Official Election Act violates the principle prohibiting self-contribution under Article 12 (2) of the Constitution (negative)

[1] Article 12(1) of the Constitution, Article 1(1) of the Criminal Act / [2] Articles 12(1) and 37(2) of the Constitution, Article 1(1) of the Criminal Act, Articles 113(1), 250(1), and 257(1)1 of the Public Official Election Act / [3] Articles 12(1) and 37(2) of the Constitution, Article 1(1) of the Criminal Act, Article 250(1) of the Public Official Election Act / [4] Articles 10 and 12(2) of the Constitution / [5] Article 12(2) of the Constitution, Article 250(1) of the Public Official Election Act

[1] Supreme Court en banc Decision 98Do3665 Decided November 16, 200 (Gong2001Sang, 100) (Supreme Court Decision 2015Hun-Ba141, 2009Hun-Ba14, 19, 36, 247, 352, 2010Hun-Ba91 Decided March 31, 201 (Hun-Ba174, 548) / [2] Supreme Court Decision 2009Do180 Decided July 23, 2009; 2012Do12416 Decided October 22, 2015; Constitutional Court en banc Decision 2015Hun-Ba14, March 31, 2011; Constitutional Court en banc Decision 2004Hun-Ba45, Feb. 24, 2014; Constitutional Court en banc Decision 2004Hun-Ba45, Feb. 27, 2014

Defendant

Defense Counsel of the defendant

Law Firm (LLC), Attorneys Kim Ji-hyung et al., Counsel for the defendant-appellant

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

1. Grounds for filing an application for adjudication on the constitutionality of the instant case

Article 113 (1) of the Public Official Election Act prohibiting act of contribution and Article 257 (1) 1 of the Public Official Election Act, which is a punishment provision, violates the principle of clarity, one of the principle of no crime without law, and infringes on the right to pursue happiness, the freedom of election campaign, and the right to participate in public affairs, and the degree of infringement is in violation of the principle of excessive prohibition.

The concept of “a person who intends to become a candidate” and “act” under Article 250(1) of the Public Official Election Act, which punishs an act of publishing false facts for the purpose of election, violates the principle of clarity, which is one of the principle of no punishment without law. The above provision violated the freedom of political expression, the freedom of election campaign, the right to hold public office, etc. and violated the principle of no punishment without law. The interpretation that a candidate’s election of public officials constitutes “act” under Article 250(1) of the Public Official Election Act, which constitutes a “act” under Article 12(2) of the Constitution, is contrary to the principle of prohibition of self-contribution under Article 12(2) of the Constitution.

2. Determination

A. In light of the legislative purpose, overall contents, structure, etc. of the punishment laws and regulations, if it is possible to find a reasonable interpretation standard to standardized or limit the types of acts constituting elements by understanding and judgment of the general public who have the ability to distinguish things, it does not go against the principle of clarity of the punishment laws and regulations required by the principle of no punishment without law (see Supreme Court en banc Decision 98Do3665 delivered on November 16, 200, etc.).

The clarity doctrine is not required to the same extent as in all Acts, but may vary to the extent required depending on the nature of each individual law or provision. This is because the specificity of individual constituent elements and the background or situation of the enactment of such Acts may vary depending on the nature of such Acts. Demanding strict clarity doctrine may not avoid the use of the term of universal and general concept as it is impossible or considerably difficult in legislative technology. Inasmuch as a law is enacted and its purpose and its relationship with other norms are considerably difficult, it is necessary to determine whether clarity is possible or not depending on what degree of reasonable interpretation is possible. Even if there is a certain degree of ambiguity in the text and text of the law, a judge can confirm the meaning of the text of the law by supplement, and such complementary interpretation cannot be said to be in violation of the clarity doctrine if there is no possibility that such supplementary interpretation may depend on the personal desire of the interpreter (see, e.g., Supreme Court en banc Order 2015Ma12, Oct. 22, 2015; en banc Decision 208Hun-Ba14, Mar. 31, 20111).

B. “Person who wishes to become a candidate” under Article 113 of the Public Official Election Act refers to a person who is scheduled to run in an election and whose candidate is expressed externally through the final and conclusive expression of the intention of candidate, such as punishment, etc., by applying for success to a political party or obtaining a recommendation of a candidate from an elector. In light of status, contact, speech, behavior, etc., a person who leads to the degree that he/she could objectively recognize that he/she has an intention to run in an election, also includes a person who wishes to become a candidate (see, e.g., Supreme Court Decisions 2009Do180, Jul. 23, 2009; 2012Do12416, Dec. 27, 2012).

In light of the above interpretation criteria, the part of “a person who wishes to become a candidate” under Articles 113 and 250(1) of the Public Official Election Act is deemed to meet the clarity required by the principle of no punishment without the law (see Constitutional Court en banc Order 2013Hun-Ba106, Feb. 27, 2014). As such, even if the scope of punishment is extended to “a person who wishes to become a candidate” as seen above, this is a minimum infringement necessary for preventing free and fair elections, and thus, cannot be deemed to have violated the right to pursue happiness, the freedom of election campaign, and the right to participate in public affairs, etc. in violation of the principle of excessive prohibition.

Therefore, the part of “a person who wishes to become a candidate” under Articles 113(1) and 250(1) of the Public Official Election Act and Article 257(1)1 of the Public Official Election Act cannot be deemed to be unconstitutional.

C. Article 250(1) of the Public Official Election Act does not punish all the “act” of a person who wishes to be a candidate, but rather restricts the type of an act to be punished in itself by punishing a person who externally publishes “false fact” by actively means of a speech, broadcast, newspaper, telecommunications, magazine, poster, propaganda document, etc. with the “purpose to be elected.” There is an inevitable aspect that impedes the freedom of election and fair election and is likely to have an unfair influence on election due to the lack of legislative technology, and that it is inevitable to abstractly define the subject of punishment. The meaning of “act” can be reasonably determined by the supplementary interpretation of the judge, and it is inappropriate to develop the specific interpretation standard of “act” through the supplementary interpretation of the judge and the accumulation of precedents.

Therefore, the argument that the above provision violates the principle of clarity or infringes on the freedom of political expression, the freedom of election campaign, and the right to hold public office in violation of the principle of excessive prohibition cannot be accepted.

D. Article 12(2) of the Constitution provides that a citizen’s fundamental right shall not be forced to make a statement unfavorable to himself/herself regarding criminal liability. The guarantee of the right to refuse to make a statement by the Constitution as a fundamental right is to protect the human rights of a criminal suspect or accused prior to the national interest, i.e., discovery of substantial truth or realization of specific social justice, which is the purpose of criminal proceedings. As a result, guaranteeing the human dignity and value, and eradicating coercion and coercion of non-human confession (see Supreme Court Decision 2004Do5494, Dec. 24, 2004, etc.).

The assertion that the part of the “act” under Article 250(1) of the Public Official Election Act violates the principle of prohibition against self-incrimination under Article 12(2) of the Constitution is merely an issue of recognition and evaluation of facts, and an interpretation and application of law, and thus, criticism or dispute over the interpretation of the court’s judgment or the court’s interpretation of the legal provision. Furthermore, even in light of the aforementioned legal principles, it is difficult to see that the above provision is a non-humanly compelling statement unfavorable to himself/herself in light of the aforementioned legal principles, and thus, cannot be accepted.

3. Conclusion

It is so decided as per Disposition by the assent of all participating Justices on the bench that the motion for adjudication on the constitutionality of this case is dismissed.

Justices Jo Hee-de (Presiding Justice)