당선목적 허위사실공표죄 중 ‘행위’ 부분의 위헌성에 관한 관견

This paper contends that the “behavior” element of the false statement offense under Article 250(1) of the Public Official Election Act — criminalizing false information about candidates for the purpose of election — is unconstitutional, in contrast to the Constitutional Court’s established rulings. To support this thesis, the paper first surveys the current interpretative approaches to the provision. It then examines how major democratic nations, including the United States, refrain from broadly penalizing false statements made during election campaigns. These countries emphasize that such regulation risks chilling political debate and may be vulnerable to abuse by political authorities who exert direct or indirect control over law enforcement and judicial appointments. The paper further analyzes the jurisprudence of the U.S. Supreme Court, particularly its invalidation of laws punishing false statements on matters of public concern for violating freedom of expression. The influence of this case law on constitutional discourse surrounding false statement regulations is also assessed. Based on this analysis, the article concludes that the provision at issue violates both the principle of legal clarity under the rule of law and the principle of proportionality, and is therefore unconstitutional. Even in the absence of a formal decision of unconstitutionality by the Constitutional Court, the paper argues that courts should apply a constitutionally consistent interpretation by limiting the scope of the provision to cases involving demonstrably false statements.