공직선거법상 ‘사실적시 후보자비방죄’에 대한 비판적 소론(小論)

The Article 251 of the Public Official Election Act provides: “Any person who slanders a candidate (including a person who intends to be a candidate), his spouse, lineal ascendants or descendants, siblings by pointing out any fact openly through a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or other means, with the intention of getting elected, or getting another person to be or not to be elected, shall be punished by imprisonment for not more than three years or by a fine not exceeding five million won: Provided, that where it is a true fact and concerns a public interest, he shall not be punished.” Therefore, those who criticizes a candidate by pointing out facts are in danger of being investigated and prosecuted even if there exists a chance to be found not-guilty in the court. Judicial interpretation of “public interest” depends on the circumstances of the crime, so similar conducts often leads to a different judgement. Under these situation, the freedom of expression is likely to be chilled. Considering that there exist the crime of announcing false facts in public elections and that of slandering candidate’s private life in the Public Official Election Act, and the crime of defamation by pointing out any facts in the Penal Code, the Article 251 is an excessive provision that infringe the freedom of expression in the process of election. Thus, it is necessary to make a strict interpretation of the Article so as to de-criminalize slander against a candidate when it points out public affairs.