투표참여 권유활동(공직선거법 제58조의2)에 대한 연구 - 공직선거법 제58조의2 단서 제3호 관련 판례의 평석을 겸하여 -

On December 22, 2017, the Supreme Court held that voting participation solicitation activities falling under Article 58-2 proviso 3 of the Public Official Election Act are prohibited only on the election day or before the start date of the election period, during which election campaigns are permitted. It was decided that the solicitation activity to participate in voting cannot be penalized because it is permitted in The main reason for this was that, if it was viewed as prohibiting or punishing voting participation activities, including supporting, recommending, and opposing specific political parties and candidates, even during the election campaign period, this would be the same as banning the election campaign itself. Then, on July 26, 2018, the Constitutional Court ruled that the provisions related to the solicitation of voting participation in the Public Official Election Act did not violate the Constitution. The main reason was that, in light of the previous Supreme Court precedents, there was not much room for questioning the constitutionality of the provision for adjudication itself. However, with respect to such a judgment, it can be pointed out that the Constitutional Court did not fully consider the ‘unconstitutionality of the object of judgment itself’ when punished only by the provisions of the judgment subject ‘without additional violation of other restrictions and prohibitions under the Public Official Election Act’. have. Therefore, it is necessary to examine the unconstitutionality of the provision subject to judgment itself. First of all, the elements subject to trial are too broad, so it cannot be excluded that the scope of the restriction will not be limited within a reasonable range due to arbitrary interpretation by a judge. In addition, the provision for adjudication punishes the solicitation of participation in voting, which can be said to be a broader political expression than the election campaign, during periods other than the election campaign period. Due to the newly established provision for adjudication, the extent of the restriction was rather excessive than that of the election campaign. Therefore, if we look at the judgment criteria presented by the Constitutional Court itself, it can be concluded that the clause subject to judgment violates the principle of clarity of the criminal justice principle and violates the principle of excessive prohibition, thereby infringing upon freedom of expression.