공직선거법 제250조 제2항(낙선목적 허위사실 공표죄)와 관련한 대법원 판결에 대한 헌법적 검토 - 소위 ‘정봉주 사건’을 중심으로 -

This essay aims to review the Supreme Court's decision on the so-called ‘Jung Bong-ju' case and its jurisprudence in relation to Article 250 Section 2 of the Public Officials Election Act(‘POEA') that criminalizes the publication of a false fact on a candidate, his or her spouse, lineal ascendents or descendents, or siblings so as to be unfavorable to the candidate through any communication tools. On December 22, 2011, the Supreme Court rejected the former legislator Jung Bong-ju's appeal challenging the inferior courts' sentence of one year imprisonment on the ground that his political attacks on the then presidential candidate Lee Myong Bak in 2007 committed the offence of publication of false facts. The author's basic position is that, considering that false or malicious propaganda has contaminated elections in Korea, an attempt to regulate political expression in the election process can be justifiable but such regulation must be contained in a strict manner so as not to oppress political expression essential to the public examination of candidates, without which democracy would not work properly. Given that, the author argues that the Supreme Court's wide recognition of malicious intent and strengthened burden of proof in the detriment of the defendant in applying the crime of publication of false facts is incompatible with the ‘rule of statutory interpretation according to the Constitution’ in that the judges should interpret criminal statutes governing political expression in election process in the strictest manner. Since the judiciary's stance regarding Article 250 Section 2 of POEA is not expected to change in the near future, legislative initiatives to make the conditions and elements of such criminal offences tightened by way of adding further intentional requirement or allowing reasons precluding illegality will be necessary so as not to allow law enforcement power to be arbitrarily misused in election process.