(영문) 인천지방법원 2008.3.20.자 2008초기450 결정

The Public Official Election Act (hereinafter referred to as "Public Official Election Act") shall be requested to make an adjudication on the unconstitutionality of Article 93(1) and Article 255(2)5.

Reasons

1. Article 93(1) and Article 255(2)5 of the Public Official Election Act (hereinafter referred to as the “instant legal provision”) of which the legal provision subject to the application is subject to the application for adjudication of constitutionality of the case, and its contents are as follows.

Article 93 (Prohibition of Unlawful Distribution, Posting, etc. of Documents and Pictures) (1) No one shall distribute, post, play, or display any advertisement, letter of personnel affairs, poster, photograph, document, drawing, picture, printed material, recording, video tape or other similar things, including the contents of recommending or opposing a political party (including the preparatory committee for the formation of a new political party and the platform and policy of a political party; hereafter the same shall apply in this Article) or candidate (including a person intending to become a candidate; hereafter the same shall apply in this Article) or showing the name of the political party or candidate in order to have an influence on the election from 180 days before the election day (in cases of a special election, the time when the reason for holding the election becomes final

Article 255 (Unlawful Election Campaign) (2) Any of the following persons shall be punished by imprisonment for not more than two years or by a fine not exceeding four million won:

5. A person who distributes, posts, posts, shows, or makes another person do so, documents, paintings, etc., in contravention of Article 93 (1), who makes or has another person make an advertisement or contribution, in contravention of paragraph (2) of the same Article, or who has another person make an advertisement or contribution, in contravention of paragraph (3) of the same Article, or who has another person do so;

A person who issues, distributes or demands any certificate, document or other printed material, or has another person do so.

2. Summary of reasons for the application;

A. The instant legal provision infringes on the fundamental contents of the freedom of expression, which is the right to freely express and exchange political opinions in the election process, by punishing a criminal charge solely on the grounds that a notice of a document, etc. criticizeing a candidate, thereby infringing on the freedom of conscience, which is a right to act according to a conscientious decision.

B. Of Article 93(1) of the Public Official Election Act, the phrase “to affect the election” is an excessively abstract and comprehensive provision that is highly vague and probable to affect the interpretation of the law, and thus is in violation of the principle of clarity and the principle of no punishment without law contrary to the principle of clarity.

3. Determination

A. On the premise of the judgment, the prosecutor filed a prosecution against the applicant at the rate of the legal provisions of this case to the Incheon District Court, and the lawsuit is pending in accordance with the Incheon District Court Decision 2007Rahap726 at the present time. Accordingly, the conclusion of not guilty or not guilty of the case on the merits is different depending on whether the legal provisions of this case are null and void or not, and thus, it is the premise of the judgment.

B. Determination as to the unconstitutionality

(1) Whether freedom of expression is infringed

Article 93(1) of the Public Official Election Act limits the acts prescribed therein in relation to the election is intended to pursue common interests of all the electors or citizens, including electors, by guaranteeing the freedom and fairness of the election. Therefore, the legitimacy of the legislative purpose is recognized, and the restriction has the meaning as an institutional device to guarantee the freedom and fairness of the election, and it is difficult to present an effective means other than prohibiting such acts for a certain period to prevent harm. In particular, it is recognized that the restriction takes place under the premise that the restriction is "to affect the election," and such restriction is a necessary and minimum measure to ensure the fairness of the election, and it is an inevitable regulation. Accordingly, it cannot be said that the freedom of political expression of the voters or the right of citizens to know is infringed.

(2) Violation of the principle of clarity

Article 93 (1) of the Public Official Election Act and Article 93 (1), considering the legislative purpose of the Public Official Election Act, the legislative purpose of other regulatory provisions of the Public Official Election Act, the whole structure of the provisions of the same Act, and the contents of the same Act, it can be interpreted that the act of distributing and posting documents, drawings, etc. under the provisions of the same Act, such as the process of preparing an election, election campaign, election campaign, election result, etc., can be viewed as taking into account the whole process, such as the act of distributing and posting documents, drawings, etc. under the provisions of the same Act, the situation at the time of the act, the method and result of the act, and the situation before and after the act. Thus, if a person has a sound common sense and ordinary legal sentiment, it can be divided into simple expression of opinion regardless of the act performed under the intention to influence the election, and as there is no possibility that arbitrary persons may be allowed in relation to the legal applicable person, this provision does not violate the principle of clarity.

(3) An act of externally impairing an individual’s personal right or reputation to protect the freedom of conscience is an act that is part of the scope of freedom of expression, and is already beyond the scope protected by the freedom of privacy. Moreover, an act of explaining or explaining his/her attitude or position to the outside can be deemed as an act of expression, such as simple thoughts, opinions, thoughts, or conviction, rather than an act related to a serious ethical decision. Thus, even if it is impossible to prevent such act on the ground that it is intended to influence an election, it cannot be said that the human conscience established within the inner area is distorted, and thus, it does not constitute a distorted act of conscience. Thus, Article 93(1) does not infringe the freedom of conscience.

4. Conclusion

Therefore, the application of this case is dismissed as it is without merit, and it is so decided as per Disposition.

March 20, 2008