민주주의 원리의 관점에서 본 공직선거법상 허위사실공표죄와 당선무효조항 - 대법원 2020. 7. 16. 선고 2019도13328 전원합의체 판결 -

In this article, I first tried to analyze how the subject case developed restrictive interpretation about false publicity crime in the public official election. The subject case restricted the meaning of publication, considered the context when judging falsehood and distinguished fact from opinion. The conclusion of the subject case seems to be based on recognizing the supremacy of free election over fair election, and shows the paradigm shift from prior supreme court decisions. Nevertheless, there still remains some questions whether the interpretation displayed in the subject case can be clear and obvious instruction for false publicity crime. The subject case interpreted the corpus delicti narrowly compared to ordinary meaning, and judged the falsehood of publication depending on the context and situation. According to this logic, the meaning of a word fluctuates, and judgment of false publicity crime can become different case by cases. Therefore, this article analyzed that the interpretation of the subject case is derived by the limitation of present public official election act system. That is to say, our electoral act system has a high level of regulation, criminal trial regarding election crime has the characteristic of election dispute, and criminal sentencing is distorted due to invalidation of the election. The interpretation seems to derive from reflective consideration of our election act system. As whether the result of the election will be invalidated depends on the sentencing of criminal trial, the trial bench cannot ignore the invalidating effect of the sentencing. However, according to the sentencing guideline, it is recommended to sentence more than 1 million won fine in election crimes, which is creating a difficult dilemma. It is hard to find a jurisdiction where the invalidation of election is decided by the result of criminal trial, not by the decision of independent organization. Moreover, public official election act in Korea seems to be the only case which displays arbitrary criteria of invalidation such as 1 million won of fine. In short, the present system which associates the election crime trial with the result of election does not correspond with the essence of judicial judgment and seems to be contrary to the principle of power separation. At the end of this article, I suggested that election invalidation rule should be abandoned by comparative analysis. It will be better to select out particular types of election crime which causes serious harm to the whole election order, and when public official is prosecuted and turns out to be guilty of those crimes, obligatory vote of confidence should be executed. It is desirable to separate the subject who makes judgment regarding election trial from the subject who makes a decision about invalidation of the election. Checking the voter’s will through vote of confidence can be the most democratic and clear solution. By this improvement, election crime trial can function as a good tool for checks and balances from judicial branch.