공선법상 ‘낙선목적 허위사실공표죄’와 당선무효강제규정의 위헌성 - 소위 ‘조희연 교육감 사건’ 제1심 판결을 중심으로 -

This essay aims to review the constitutionality of the crime of false statement in election campaigns in Korea, in terms of constitutional principles and rules governing election. Article 250 Section 2 of the Public Officials Election Act(‘POEA') makes false statements on a candidate and his or her family so as to be unfavorable to the candidate through any communication tools in election campaigns punishable by imprisonment for not more than seven years or by a fine of not less than five million won and not more than 30 million won. In addition, Article 264 of POEA states that if an elected person is sentenced to imprisonment or a fine exceeding one million won on account of committing election crimes, his election shall become invalidated. The author recalled his argument, deployed in another place where the Supreme Court's jurisprudence on the said crime of false statements unfavorable to the candidate was reviewed, that the highest court's wide recognition of malicious intent and strengthened burden of proof in the detriment of the defendant in applying the crime of false statements is incompatible with the ‘constitutional 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. The judges of the first trial in relation to the Cho Hee-yeon, the Superintendent of the Seoul Metropolitan Office of Education, whose indictment on charges of false statement against his rival candidate in the local election 2012 led to the fine of 5 million Won followed the Supreme Court's established jurisprudence without any critical evaluation. The author's opinion on this case is that let alone the trial judges' mundane acception of the precedent, they failed to consider important constitutional issues concerned in this case, in particular whether the criminal responsibility of the accused is so grave as to invalidate his election and such ignorance of important legal issues at stake is so serious as to doubt the justification of their verdict. In addition, the author tries to challenge the constitutionality of the election crimes with the effect of de facto mandatory invalidity of election. The main arguments in this regard are three folds. First, in principle, election regulation must be contained in the strictest manner so as not to oppress political expression essential to the public examination of candidates, without which democracy would not work properly. Second, the crime of false statements unfavorable to the candidate is a de facto election litigation rather than ordinary criminal cases so that the constitutional balancing of proportionality between the kind and severity of criminal offence and the removal of the elected representative of the voters from his office must be stricken. Third, any legislation imposing a de facto mandatory invalidation of election regardless of the severity and kind of election crime is incompatible with the constitutional principles of the separation of powers and checks and balances, the independence of the judiciary and the sovereign power of the people to choose their representatives.