In this case, the Constitutional Court held that the provision of the Public Official Election Act, which criminally punishes a person who offers money to a rival candidate in return for his/her dropping out of the race related to education superintendent election, does not violate the rule of clarity under the principle of nulla poena sine lege and the principle against excessive restriction.

【Background of the Case】

(1) On September 21, 2011, petitioner (Kwak, Noh-Hyun), who was elected as the Superintendent of the Seoul Metropolitan Office of Education in 2010, was indicted on charges of offering money (200 million won) and a public position (Vice Chairman of the Advisory Committee on Educational Development in Seoul) to a rival candidate in the 2010 election (Park, Myung-Ki) in return for Park’s withdrawal of candidacy, in violation of Article 49 Section 1 of the Local Education Autonomy Act and Article 232 Section 1 Item 2 of the Public Official Election Act.

(2) While the case was pending at the trial court (Seoul District Court), the petitioner filed a motion to request for a constitutional review of Article 232 Section 1 Item 2 of the Public Official Election Act, which was the basis of his indictment.

On December 29, 2011, however, Seoul District Court partially dismissed and denied the motion. And on January 19, 2012, the court convicted the petitioner of bribery and violation of the Local Education Autonomy Act and the Public Official Election Act and fined him 30 million won (guilty of offering money but not guilty of offering a public position).

(3) At this, the petitioner subsequently filed this constitutional complaint on January 27, 2012 against Article 232 Section 1 Item 2 of the Public Official Election Act.

【Provisions at Issue】

The provision at issue in this case is whether the part of the main text of Article 49 Section 1 of the Local Education Autonomy Act, stipulating that the part of 『a person who offers, manifests an intention to offer, or promises to offer ‘money’ or a ‘public position’ to a person who was a rival candidate in return for his/her resignation』in Article 232 Section 1 Item 2 of the Public Official Election Act (revised by Act No. 7681 on August 4, 2005) shall applies mutatis mutandis (hereinafter, the ‘Provision at issue’), is constitutional.

Local education Autonomy Act Article 49 (『Public Officials Election Act』 applied mutatis mutandis)

Except as stipulated in the Act, the part of Mayor and Governor and its election in Article 219 to Article 262 … of the Public Official Election Act shall apply mutatis mutandis to the election of superintendent of education.

Public Official Election Act (revised by Act No. 7681 on August 4, 2005)

Article 232(Crime of Corruption and Inducement by Interests toward Candidates) (1) A person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than seven years or by a fine of not less than five million and not more than 30 million won:

2. A person who commits any act provided in Article 230 (1) 1 against a person who intends to be or was a candidate for the purpose of compensation in return for giving up being a candidate or resigning candidacy, or who receives such benefit or a private or public position or accepts a manifestation of an intention of such offer.

【Summary of the Decision】

1. Regarding the act of offering ‘a private or public position’ in the Provision at issue

The petitioner was indicted on charges of offering money and a public position to a rival candidate for the purpose of compensation in return for his withdrawal from the race. But among the charges, the petitioner was found not guilty of the act of offering a public position by the court. Therefore, the constitutional complaint regarding the part of the act of ‘offering a public position’ in the Provision at issue should be dismissed as non-justiciable due to the lack of relevance to the underlying case.

2. Regarding the act of offering money in the Provision at issue (hereinafter, the Instant Provision)

A. Whether the Instant Provision violates the rule of clarity

Based on the content of the Instant Provision, general meaning and the usage of ‘compensation’, legislative history and its structure, and the legislative purposes of the Public Official Election Act, the Instant Provision is interpreted to punish the act of offering money or a position to a person who was a candidate in return for his/her resigning. As such, it is easy to come up with a reasonable standard of review to grasp the meaning of the Instant Provision and therefore, it does not violate the rule of clarity.

B. Whether the Instant Provision violates the principle against excessive restriction

The legislative purposes of the Instant Provision are to ensure the incorruptibility of the right to be elected and to guarantee the fairness of elections, and such purposes are legitimate. Also, punishing the act of offering money to a former election rival after an election in return for his/her dropping out of the race seems to be appropriate means to get rid of corruption in the nation’s election culture by preventing candidates from expecting ‘reward in return for resignation,’ thereby building public trust in election as a recurrent system. The Instant Provision, moreover, does not entirely forbids all monetary transactions regarding an election candidate’s resignation, but aims to punish the act of offering money only in return for resigning his/her candidacy. And since the subject matters to be regulated by other provisions of the Public Official Election Act related to offering money are different from those of the Instant Provision, such provisions cannot be considered to substitute for the Instant Provision to achieve the aforementioned legislative purposes. And the reimbursement of election expenses due to so-called ‘candidacy unification’ can be interpreted as not being paid in return for favor. Further, the values pursued by the Instant Provision, namely the incorruptibility (non-tradability) of the right to be elected, the fairness of election and public trust building in that matters, are very important and the restriction on the freedom of political expression or the general freedom of action by the Instant Provision seems to be within the necessary scope to achieve the public interests. Therefore, the Instant Provision does not violate the principle against excessive restriction.

C. Whether the Instant Provision violates the rule of liability or the principle of equality

According to the Instant Provision, even when an intention to offer money is formed after a rival candidate dropped out of the race, the same statutory sentence will be imposed as in a case where an illegal activity is involved before a person abandons his/her candidacy, thereby inevitably losing one’s post. But such a decision depends upon the legislature’s specific criminal policy to stringently regulate any activity that infringes on the incorruptibility of the right to be elected by exercising influence through money, and given the broad legislative discretion granted in deciding the types and scope of statutory sentences, it is hard to say that the Instant Provision deviates from the rule of liability and the principle of equality.

【summary of Dissenting Opinion by three Justices】

1. Violation of the rule of clarity

Although it is true that a stricter scrutiny for the rule of clarity is required in reviewing a provision prescribing criminal sentences, the Instant Provision, under the title of ‘Crime of Corruption and Inducement by Interest toward Candidates’, uses unclear expression of “for the purpose of compensation” which is grammatically incoherent and therefore, fails to provide clear definition of the interests to be protected by the Instant Provision and the elements of crime to be punished. As such, it is hard to expect what will be prohibited by the Instant Provision, and therefore, it opens the possibility that the discretion of those who apply the law can be involved in making related decisions. For this reason, it violates the rule of clarity.

2. Violation of the principle against excessive restriction

The values of the incorruptibility of the right to be elected and the fairness of election themselves are important. But punishing the act of offering money after the end of election, or the time when there even exists no abstract possibility to bribe a rival candidate, has totally nothing to do with the incorruptibility of the right to be elected or the assurance of fairness in election process because it simply amounts to regulating an act impossible to influence the decision making process of candidate resignation or the result of election. Even if the means to achieve the legislative purpose in this case could be considered legitimate as it is somewhat necessary to guarantee the fairness of election and to set the principle of the incorruptibility of the right to be elected for the election as a repeated, although abstract, system, the scope of regulation in the Instant Provision is too wide because it fails to specify the time limits or the subjects to be regulated. The Instant Provision, also, excessively restricts the freedom of political activity by making it impossible to negotiate the reimbursement of election expenses between candidates during the candidacy unification process, which is considered as one of the proper and natural political activities in contemporary politics. Further, the public interest achieved by adding the Instant Provision, despite the existence of other provisions that prohibit bribes before candidate’s resignation, is based on unclear and vague risks. Therefore, it is in violation of the principle against excessive restriction.