공직선거법상 허위사실공표죄에 관한 헌법합치적 해석과 적용: 수원고등법원 2019. 9. 6. 선고, 2019노119 판결과 관련하여

The false publicity of the Public Official Election Act is a crime that is established when a person discloses false information for the purpose of electing or losing a candidate in an official election. It aims to secure the fairness of the election. However, this crime should be determined after considering comprehensively whether the facts are false or not. Usually the fact has an element of opinion, so there is a possibility of debate even about the fact. In particular, in the case of the official election, which is a democratic political process, it is expressed in the situation where the political struggle is strengthened to the highest. In the case of broadcast discussions, the opportunity for counter-argument or clarification is immediately given in the presence of the other party, so unlike the distribution of speeches or handouts, limiting the application of false publicity can contribute to ensuring the freedom of expression. And the defendant is in the absence of sufficient time for answer in the discussion forum led by the other party, the defendant's statement in the debate should not be interpreted as a publicity of false information, because there is a chance for further explanation in the future, and that the voters must have the confidence to have the political ability and to collect a lot of data and make the right evaluation. ‘Purpose to be elected’ is an excessive subjective illegal element that is specifically recognized by the law. If the subjective illegal element is acknowledged with only unintended purposes, it can be regarded as a false interpretation of the article because it is ignoring the purpose specified in the act. The interpretation of the supreme court is a violation of the constitutional principles such as the separation of powers and the rule of law. The courts need to be very cautious in judging and engaging in democratic political processes in that their democratic legitimacy is weak compared to the legislative or executive. In particular, there is a charge of false elitism in that the ruling is based on distrust of the electors, and the attitude of judicial activism based on this may counteract democracy. Among the constituent elements of false publicity, the concept of false facts regarding candidates ‘behavior’ is so broad that there is a possibility of infringement of basic rights, which may violate the principle of clarity. Therefore, it is necessary to be very cautious about applying false publicity to candidate’s behavior. The Supreme Court must overrule the ruling. The accused is innocent.