투표참여 권유행위의 허용범위에 대한 고찰 -공직선거법 제256조 제3항 제3호의 ‘이 법에 규정되지 아니한 방법으로’의 해석을 중심으로-

The scope of punishment for voting participation solicitation restricted in each subparagraph of Article 58-2 of the Public Official Election Act is a matter of interpretation of “in a way not prescribed in this Act” in Article 256 (3) 3 of the Public Official Election Act. In light of the facts and judgments of related precedents, the Supreme Court and the Constitutional Court seem to interpret the solicitation of voting under Article 58-2 of the Public Official Election Act as punishable in principle, but not punishable if it is carried out in a way that is explicitly permitted by the Public Official Election Act. However, this interpretation has the problem of excessively limiting the freedom of political expression of ordinary voters. The Public Official Election Act stipulates that all other acts are comprehensively prohibited after listing the subjects and methods allowed for ‘election campaigns’, and all allowances limit the subjects to candidates, political parties, etc., so the campaigns of ordinary voters are almost blocked. In other words, since explicit permission regulations exist only for election campaigns under the Public Official Election Act, voting participation solicitation that does not reach the campaign is also subject to strict restrictions on the subject, timing, and method of the campaign, and it is a very unfair result that is rarely allowed for ordinary voters. This stems from the problem that Article 256 (3) 3 of the Public Official Election Act does not have specific permission regulations for ordinary voters while punishing voting solicitation activities made “in a way not prescribed in this Act,” which is most desirable to be corrected in the direction of removing unconstitutional elements and regulating sufficient meaning through legal norms, but as an agency that interprets and enforces the law, it is necessary to interpret it constitutionally under the current norms. It is reasonable to interpret that the act of soliciting voting under the proviso to Article 58-2 of the Public Official Election Act is subject to punishment only when it is carried out in a way that violates other prohibited regulations under the Public Official Election Act, considering the legislative purpose, and systematic structure of legal norms. Considering the purpose of allowing political expression, including election campaigns under the Public Official Election Act, it is also possible to interpret the “method not prescribed in this Act” as “not permitted” under the Public Official Election Act, and the Public Official Election Act prohibits acts that do not reach an election campaign if they are feared to harm the fairness or order of the election, so there is not much concern that the fair or order of the election will be violated due to indiscriminate voting solicitation by ordinary voters.