【Questions Presented】

1. Whether the part of the main text of Article 49 Section 1 of the Local Education Autonomy Act, where the part of 『‘a person who offers, manifests an intention to offer, or promises to offer money’ to a person who was a candidate for the purpose of compensation for giving up being a candidate or resigning candidacy』of Article 232 Section 1 Item 2 of the Public Official Election Act (revised by Act No. 7681 on August 4, 2005) shall applies mutantis mutandis(hereinafter, the ‘Instant Provision’), is in violation of the rule of clarity under the principle of nulla poena sine lege (negative)

2. Whether the Instant Provision violates the principle against excessive restriction (negative)

3. Whether the statutory sentence prescribed in the Instant Provision does not conform to the rule of liability or the principle of equality(negative)

【Summary of Decision】

1. As 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, it is not in violation of the rule of clarity.

2. The legislative purposes of the Instant Provision are to set the principle that the right to be elected is not subject to a deal 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 effective means to eradicate corruption in the nation’s election culture by preventing candidates from expecting ‘reward in return for resignation,’ thereby building public trust in election system. The Instant Provision, moreover, does not entirely forbids all money 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 the 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.

3. 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 is based on 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 monetary reward, and given the broad legislative discretion granted in deciding 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.

Dissenting Opinion of Justice Song Doo-Hwan, Justice Lee Jungmi, Justice Kim Yi-Su)

1. 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 ‘Corrupt Practices and Inducement by Interest toward Candidates’, uses unclear expression of “with the intention of gaining compensation” which is also 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. 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 the additional legislation of the Instant Provision, despite the existence of other provisions that prohibit bribes before candidate’s resignation, is based on unclear and vague concerns. Therefore, it is in violation of the principle against excessive restriction.

【Provision at Issue】

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

Article 232(Crime of Corruption and Inducement by Interest 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:

1. Omitted

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.

Local education Autonomy Act

Article 49 (『Public Officials Election Act』 applied mutantis mutandis) (1) Except as stipulated in the Act, the part of Mayor and Governor and its election in Article 3 to Article8, Article 8-2 to Article 8-4, Article 8-6, Article 9, Article 10, Article 10-1, Article 10-3, Article11, Article 12, Article 14, Article 15, Article 17 to Article 19, Article 30 to Article 46, Article 48 to Article 50, Article 52, Article 54 to Article 57, Article 58 to Article 60, Article 60-2 to Article 60-4, Article 61, Article 62 to Article 74, Article 79 to Article 82, Article 82-2, Article 82-4 to Article 82-7, Article 85, Article 86(except the proviso of Section 2 proviso of Item 2 and Item 3 and Section 6), Article 87 to Article 108, Article 108-2, Article 109 to Article 122, Article 122-2, Article 135(except the provision of Section 1), Article 1`35-1, Article 146, Article 146-2, Article 147 to Article 149, Article 149-2, Article 151 to Article 159, Article 161 to Article 166, Article 166-2, Article 167 to Article 186, Article 191 to Article 206, Article 211 to Article 217, Article 219 to Article 262, Article 262-1, Article 262-3, Article 263 to Article 265, Article 265-2, Article 266 to Article 270, Article 270-2, Article 271, Article 271-2, Article 272, Article 272-2, Article 272-3, Article 273 to Article 277, Article 277-2, Article 278, Article 279 of the Public Official Election Act shall apply mutatis mutandis to the election of superintendent of education.

(2) omitted

【Related Provisions】

Intentionally omitted

【Party】

Petitioner Kwak, X Hyun

Representatives:

1. Dasan Law Firm

Attorney in charge: Kim, Chil-Jun

2. Attorney in charge: Kim, Soo-jung

3. Dongwha Law Firm

Attorney in charge: Lee, Jae-jung

4. Attorney in charge: Kim, Nam-joo

5. Jipyong Jisung Law Firm

Attorneys in charge: Lee, Kong-Hyun and six others

Underlying Case

Seoul Central District Court 2011KoHap1212, 2011KoHap1231 (Consolidated) Violation of the Local Education Autonomy Act

【Holding】

1. The part of the constitutional complaint on the part of the main text of Article 49 Section 1 of the Local Education Autonomy Act, stipulating that 『a person who offers, manifests an intention to offer, or promises to offer a ‘private or public position’ to a person who was a rival candidate for the purpose of compensation in return for giving up being a candidate or resigning candidacy』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, is dismissed.

2. The part of the main text of Article 49 Section 1 of the Local Education Autonomy Act stipulating that『a person who offers, manifests an intention to offer, or promises to offer‘money’ to a person who was a rival candidate for the purpose of compensation in return for giving up being a candidate or resigning candidacy』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, is not in violation of the Constitution.

【Reasoning】

I. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

1. On September 21, 2011, petitioner, who was elected as the Superintendent of the Seoul Metropolitan Office of Education on June 2, 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 in return for his 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 2011KoHap1212, 2011KoHap1231 (consolidated)], 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, claiming that the provision violates the rule of clarity, the principle against excessive restriction, etc.

3. Seoul District Court, on December 29, 2011, denied the part of the motion to request for a constitutional review regarding ‘the part of Article 232 Section 1 Item 2 of the Public Official Election Act that punishes a person who offers ‘money’ or a ‘private or public position’ to a person who was a rival candidate for the purpose of compensation in return for giving up being a candidate or resigning candidacy among the acts provided in Article 230 (1) 1 and the one who receives such an offer by imprisonment for not more than five years or by a fine not exceeding ten million won’ and dismissed the other part of the motion for lack of justiciability (2011ChoKi4442). 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).

4. 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.

5. Later, on April 17, 2012, Seoul High Court (2012No248) sentenced the petitioner to one year in prison (reaching same conclusion as the trial court regarding the petitioner’s conviction but providing different sentence). At this, both sides appealed against the decision, but on September 27, 2012, the Supreme Court (2012Do4637) affirmed the petitioner’s conviction and the appeals were all denied (guilty of offering 200 million won and confirming the one year prison sentence).

B. Subject Matters of Review

1. The petitioner asks a constitutional review over the entire provision of the Public Official Election Act, but the underlying case pertains only to the part of a person who offers ‘money’ or a ‘private or public position’ to a person who was a rival candidate for the purpose of compensation in return for giving up being a candidate or resigning candidacy, and the other part of the provision is not relevant to this case. Moreover, it seems not necessary for the Constitutional Court to actively review the constitutionality of the other part of the provision.

Meanwhile, the provision at issue in this case applies mutatis mutandis to the election of superintendent of education due to the main text of Article 49 Section 1 of the Local Education Autonomy Act.

Therefore, the provision subject to review in this case should be limited to the part of the main text of the Article 49 Section 1 of the Local Education Autonomy Act which stipulates that the part of 『a person who offers, manifests an intention to offer, or promises to offer a ‘private or public position’ to a person who was a rival candidate for the purpose of compensation in return for giving up being a candidate or resigning candidacy』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 Instant Provision).

2. The provision at issue (underlined) in this case is as follows:

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.

II. Arguments of Complainants

(Intentionally Omitted)

III. Review

A. Review on Justiciability

1. For a constitutional complaint under Article 68(2) of the Constitutional Court Act to be justiciable, the provision should satisfy the prerequisite of relevance to the underlying case. The prerequisite requirement is satisfied when the provision is relevant to the underlying case; and the decision on the constitutionality of the provision affects the substances of judgment of the underlying case(see 4 KCCR 853, 864, 92Hun-Ka8, December 24, 1992; 7-2 KCCR 48, 58, 93 Hun-Ba46, July 21, 1995).

Therefore, the relevance to the underlying case would not be recognized if the outcome of the underlying case or legal significance of the court’s ruling and its effects does not depend on the constitutionality of the provision(20-2(A) KCCR 80, 87, 2004Hun-Ba28, July 31, 2008; 21-1(B) KCCR 545, 554-555, 2006Hun-Ba109, etc. May 28, 2009; 23-2(A) KCCR 20, 23-24, 2009Hun-Ba149, July 28, 2011).

2. Despite the petitioner was accused for offering monetary rewards or public positions to a person who had been a candidate of Superintendent of the Seoul Metropolitan Office of Education for the purpose of compensation for resigning candidacy, the petitioner received a judgment of acquittal with regard to the part of ‘offering public positions’. Therefore, the part of ‘offering public positions’ of the provision at issue should be dismissed due to lack of its relevance to the underlying case in that the constitutionality of the part does not affect the outcome of the underlying case.

3. Nonetheless, the part of ‘offering money’ of the provision at issue (hereinafter, ‘the instant provision’) is relevant to the underlying case; and the petitioner may request a retrial for a judgment of acquittal with regard to the part if the instant provision is decided unconstitutional. Therefore, the part of ‘offering money’ is justiciable for satisfying the relevance to the underlying case.

B. Review on Merits

1. Rule of Clarity under the Principle of nulla poena sine lege

(A) The principle of nulla poena sine lege under the Constitution requires statutes to prescribe criminal offenses and their penalties; and the rule of clarity under the principle of nulla peona sine lege requires statutes to describe precisely the acts subject to the criminal punishment and their statutory penalties so that people may predict punishable offenses and thereafter decide their acts. An abstract or ambiguous provision of criminal law would not be observed because people may not be confident whether they obey the law or not. The rule of law, eventually, that protects the freedom and rights of the people under the principle of nulla peona sine lege, would not be acknowledged if a commitment of a crime depends on an arbitrary decision of judges (see 8-2 KCCR 785, 792-793, 93Hun-Ba65, December 26, 1996; 22-2(B) KCCR 684, 694, 2008Hun-Ba157, etc., December 28, 2010).

Nevertheless, the clarity of criminal offenses does not imply that the Legislature should prescribe every element of offenses with simple and explanatory words. Even a statutory provision having broad connotations should not be deemed as a violation of the rule of clarity insofar as the contents of its text can be clarified by the judge’s supplementary interpretation. Therefore, the rule of clarity is not violated where people with sound common sense and rational legal sense can fully understand subjects to be regulated and particular elements of the offense. The excessively specified and patterned text may not reflect, and eventually may not regulate, the changing circumstances of the society (see 16-2(B) KCCR 381, 391, 2004Hun-Ba35, November, 25, 2004; 23-1(B) KCCR 337, 347, 2009Hun-Ba199, June 30, 2011).

Determination on the clarity of a provision shall be made by a decision whether the text of the provision is predictable and rule out the possibility of arbitrary interpretation: The predictability is achieved when the provision fairly informs people of the contents and meanings of the text; and the provision is precisely prescribed to eliminate any possibility of arbitrary interpretation or application of the Judiciary. Because the provision is synthetically clarified with its texts, legislative purpose and intent, history of enactment, and systematic structure of law, the determination on whether the rule of clarity is infringed depends on whether the comprehensive interpretation can draw a clear and rational standard of interpretation from the text (see 17-1 KCCR 812, 821-822, 2002Hun-Ba83, June 30, 2005; 23-1(B) KCCR 337, 347, 2009Hun-Ba199, June 30, 2011).

(B) The instant provision does not violate the rule of clarity of the Constitution, considering the legislative history, enactment formality, and interrelationship between the instant provision and other provisions, under the standards as above.

1) The part of “for the purpose of compensation for resigning candidacy” of the instant provision is subject to the review under the rule of clarity. First of all, the word of “compensation” literally means “rewards paid off in value for the work done”, which is commonly used in our everyday lives as well as in prescribing other laws, implying the notion is not multi-sense or ambiguous. The expression of “compensation for resigning from candidacy” is also interpreted as ‘rewards or benefit in return for resignation’.

2) With regard to the meaning of “for the purpose of compensation” of the instant provision, the nature of the instant provision is deemed as purposeful offense, requiring ‘the purpose to pay compensation for resigning candidacy’, with the considerations that the expression of “for the purpose” is clearly stated in the instant provision; a criminal law provision with additional phrase of “for the purpose” is generally classified as purposeful offense; the expression of “compensation for” and the expression of “for the purpose of compensation for” are clearly distinguished in the Public Official Election Act; Article 154 Section 1 Item 2 of the former House of Representative (Min Ui Won) Election Act (before repealed by Act No. 551 on June 23, 1961) and Article 142 Section 1 Item 2 of the former National Assembly Members Election Act (before repealed by Act No. 1256 on January 16, 1963), that are followed by the instant provision, had stipulated that “for the purpose of compensation resigning candidacy”; and the principle of nulla peona sine lege does not allow to delete arbitrarily the stipulated text, in disfavor of the defendant, despite the general grammar suggests that the expression of ‘compensation for’ is more acceptable than the expression of “for the purpose of compensation for”.

The establishment of ‘the purpose of compensation’ in an individual case would be determined by the relation between a person offering money and resigned candidate, the effects of the resignation to the person offering monetary rewards, motivation, details, process, methods and means of offering money, amount of offered money, and other circumstances of money offering, according to the common sense in our society (see 2012Do4367 delivered on September 27, 2012, the Supreme Court).

3) Because the instant provision does not provide any additional requirements except ‘offering money to a person who was a candidate for the purpose of compensation for resigning candidacy’, it is manifest that ‘unjust preceding act to entice resignation from candidacy’ is not required to establish this offense. Considering that Article 232 Section 1 Item 1 of the Public Official Election Act stipulates the provision to punish ‘any offering, manifesting an intention to offer, or promising to offer money’ prior to the resignation from candidacy; and Item 2 of the above section additionally prohibits ‘any offering, manifesting an intention to offer, or promising to offer money’ after the resignation from candidacy, the instant provision does not require any unjust preceding act, such as agreement to offer money prior to the resignation from candidacy.

4) With these understandings of literal meaning of the instant provision, general usage of ‘compensation’, legislative history and enactment formality, systematic relation with related provisions, and legislative purpose to ensure the fairness of election of the Public Official Election Act, it is evident that the instant provision prohibits any offering of money for the purpose of compensation or reward for resigning candidacy.

Since the instant provision can draw a rational standard to comprehend the meaning and contents for interpretation, a person with sound common sense and general legal sense would fully understand the prohibited act of the instant provision, implying that a possibility of arbitrary interpretation or application of the Judiciary is excluded.

(C) Therefore, the instant provision does not violate the rule of clarity of the principle of nulla poena sine lege.

2. Principle Against Excessive Restriction

(A) The instant provision restricts the freedom of political expression or general freedom of action, which should be reviewed under the strict scrutiny, in that the instant provision prohibits an act related to resignation from candidacy in election that is an essence of political process. Therefore, the principle against excessive restriction shall be applied to the review of the instant provision.

(B) The fairness of public official election would be severally impaired by offering or receiving money or any interest during election in that it would distort the right to be elected. The legislative purposes of the instant provision are to set the principle that the right to be elected should be incorruptible or non-tradable (specifically, incorruptibility of determination with regard to the resignation from registered candidacy), which confirms the principle that resignation from candidacy should not be subject to a deal, and to prevent corruption, for establishing fairness of election, by blocking the leverage of money over candidates. This legislative purpose would be legitimate, considering the election practice in our society and the people’s desire for preventing corruption in elections.

(C) The prohibition and punishment of offering compensation after the resignation from candidacy of the instant provision would prevent the corruption of election culture by ceasing the expectation of ‘compensation for resignation’, and eventually secure the credibility for integrity and fairness of election. From a perspective of election system, offering compensation impairs the fairness of election and incorruptibility of the right to be elected despite offering money after resigning candidacy does not affect directly the resignation from candidacy or the result of election, in that election that is an essential system for democracy is periodically held (see 2012Do4367 delivered on September 27, 2012, the Supreme Court). Therefore, the punishment would be an appropriate means to achieve the legislative purpose.

(D) The Instant Provision does not entirely forbids all money transactions regarding resignation after the candidate resigned, but aims to punish the act of offering money only in return for resigning candidacy.

Provisions of prohibition of election campaign in favor of other candidates (Article 88 of the Public Official Election Act), prohibition of receiving contributions (Article 117 of the Public Official Election Act), and prohibition of return courtesy after election (Article 118 of the Public Official Election Act) cannot be considered to substitute for the instant provision to achieve the aforementioned legislative purpose in that their regulative subject, scope, and requirements are distinguishable from those of the instant provision. Considering that the invalidation of elected person who offered compensation is not effective in prohibiting any act of offering compensation to a person who is not elected, the instant provision would not be excessive in establishing the incorruptibility of the right to the elected, for preventing the corruption of election culture, which is substantial.

The Legislature has discretion in determining whether it is sufficient to prohibit an act of offering compensation prior to resignation, which would directly affect the resignation, or whether any possible expectation for compensation for resignation should be completely blocked, for establishing sound election culture and credibility of election, by prohibiting an act of offering compensation after resignation, under the comprehensive considerations of election culture, election practice, and legal sense of the people. The election culture of our nation and the expectation to prevent corruption of the people would justify the legislative determination that recognizes the necessity of the aforementioned regulation.

On the other hand, the so-called ‘candidacy unification’ through the policy coalition may lead the unification according to the financial capacity of candidates, not the qualifications of candidates, if the unification is related to the reimbursement of election expenses of the resigned. Nonetheless, the reimbursement of election expenses due to candidacy unification would be interpreted as not being paid in return for favor under the instant provision, if election expenses are reimbursed for valid agreement of policy coalition that accords the general standard that would not impair fairness and credibility of an election and that would not cause the corruption in elections.

(E) The values pursued by the Instant Provision, namely the incorruptibility of the right to be elected, the fairness of election and public trust building in that matters, are essential in democratic society and 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 cannot be deemed in violation of proportionality between the pursued public interests and restricted fundamental rights.

(F) Therefore, the Instant Provision does not violate the principle against excessive restriction.

3. Unconstitutionality of Statutory Punishment

(A) Types and scope of the statutory punishment, that is how to punish what kind of crimes, require the comprehensive consideration of our history and culture, circumstances at the time of legislation, values or legal sense or the people and criminal policy to prevent the crime, that should be determined by the Legislature and is an area requiring broad discretion of legislation, in addition to the consideration of nature and protected interests of crimes. Therefore, we have held that statutory punishment should not be concluded unconstitutional unless the statutory punishment is too harsh or cruel in comparison to the nature of crime and responsibility, thus losing balance in the criminal punishment system, or when the statutory punishment is excessively beyond the necessary level to achieve the purpose and efficacy of the criminal punishment, clearly in violation of the principle of equality or principle of proportionality of the Constitution (see 20-1(A) KCCR 426, 432-433, 2007Hun-Ka20, April 24, 2008; 22-1(A) KCCR 11, 26, 2008Hun-Ka20, February 25, 2010).

(B) Article 264 of the Public Official Election Act states that if an elected person is sentenced to imprisonment or a fine exceeding one million won on account of committing the crime provided for in this Act in the election concerned, his/her election shall be invalidated. Under this provision, the invalidity of election would be inevitable if a person violates the instant provision, in that the instant provision stipulates “imprisonment for not more than seven years or fine of not less than five million and not more than thirty million won” that are the punishment invalidating the election, even if a judge mitigates the punishment in extenuating circumstances and laws. Here arises the issue of whether the statutory punishment of the instant provision is excessively harsh, under the principle of proportionality between responsibility and punishment.

The statutory punishment for ‘offering money for purpose of compensating for resigning candidacy’ of the instant provision accords the criminal policy under the legislative determination that strictly regulates any act which infringes the incorruptibility of the right to be elected by leverage of money. Considering that the offense of the instant provision may damage the credibility of the people for the fairness of election, eventually corrupting the election culture, the statutory punishment would not lose balance in the criminal punishment system or would not be excessive beyond the reasonable degree to achieve its purpose.

The invalidation of election would be unavoidable under Article 264 of the Public Official Election Act, if the elected person commits the offense of the instant provision despite a judge mitigates the punishment in extenuation of circumstances and laws. Nonetheless, the invalidation results from the strict standard for invalidating election of Article 264 of the Public Official Election Act, not the statutory punishment stipulated in the instant provision.

Although the Legislature narrows the sentencing discretion of judges by the statutory punishment with the comprehensive consideration with regard to appropriating statutory punishment, the statutory punishment should not be concluded unconstitutional unless the statutory punishment is not rational in comparison to the nature and protected interests of crime under the principle of proportionality between responsibility and punishment (see 7-1 KCCR 539, 553, 93Hun-Ba40, April 20, 1995; 16-1 KCCR 741, 750-751, 2003Hun-Ba53, June 24, 2004). The instant provision is the result of the legislative determination that invalidates election, in principle, despite a judge mitigates the punishment, for the significance of illegality of ‘an act of offering compensation for resigning candidacy’. The legislative determination is deemed as rational under the aforementioned circumstances.

(C) The petitioner argues the minimum sentence of fine, five million won, stipulated by the instant provision violates the principle of equality, losing balance in the criminal punishment, whereas Article 256 Section 4 Item 11 of the Public Official Election Act (a provision to punish return courtesy after election by imprisonment for not more than one year or by a fine not exceeding two million won) is possibility applicable to the elected person although it does not affect the result of election, like the instant provision; and offense of Article 230 Section 2 of the Public Official Election Act (a provision to punish a candidate for offering money to any elector for the purpose of making himself/herself elected or making another person not elected by imprisonment for not more than seven years or fine not exceeding fifteen million won) is more substantial in terms of illegality, compared to the ones of the instant provision.

The essence and protected interests of the crime are the most significant elements to decide the types and scopes of the statutory punishment: The different protected interests of crime would be followed by the different statutory punishment; and the different nature of crime, despite the identical protected interests of crime, would be followed by the different statutory punishment. The determination of the minimum sentence of a crime is within the legislative discretion under the comprehensive considerations, implying that the gravity of crime is not always directly correlated to the gravity of minimum sentence that depends on the nature and essence of the crime (22-1(A) KCCR 11, 31, 2008Hun-Ka20, February 25, 2010).

Considering that the illegality of ‘offering money for the purpose of compensation for resigning candidacy’ is substantial for corrupting election culture and impairing the credibility of fairness of election; and it is the legislative determination that the infringement on the incorruptibility of the right to be elected by exercising influence with money should be strictly regulated, the statutory punishment of the instant provision does not violate the principle of equality without losing balance in the criminal punishment, simply comparing Article 256 Section 4 Item 11 and Article 230 Section 2 of the Public Official Election Act and the instant provision whose protected interests and nature of crime are different, despite the minimum sentence of the instant provision would inevitably give rise to invalidation of election.

(D) Notwithstanding Article 232 Section 1 stipulates the same statutory punishment for ‘offering money prior to resignation’ directly affecting the resignation (Item 1) and ‘offering money after resignation’ indirectly affecting the resignation (Item 2), the instant provision would not violate the principle of individualizing punishment in that the statutory punishment of Article 232 Section 1 Item 1 and 2, which is “imprisonment for not more than seven years or a fine of not less than five million and not more than thirty million won”, allows the broad sentencing discretion of judges that would decide the appropriate sentencing under the nature of crime and specific illegality of offense, acknowledging the possibility of suspending sentence of fine.

(E) Therefore the instant provision does not violate the principle of liability and principle of equality.

4. Legal Prescription of Public Prosecution

(A) The main text of Article 268 Section 1 (applicable to the underlying case by Article 49 Section 1 of the Local Education Autonomy Act) states that “the prescription of a public prosecution against the crime under this Act shall be completed at the expiration of six months (in case of crimes committed after the election day, six months from the day on which the crime is committed) after the competent election day.” With regard to prescription of public prosecution, it stipulates ‘six months after the competent election day’ for a crime committed prior to the election day, regardless of specific date when the crime is committed; and ‘six months from the day on which the crime is committed’ for a crime committed after the election day.

(B) The petitioner insists that it is unconstitutional discrimination to extend repeatedly the legal prescription of public prosecution just for an offense violating the instant provision, among the offenses under the Public Official Election Act. Nevertheless, this allegation with regard to legal prescription of public prosecution is concerned with the unconstitutionality of the main text of Article 268 Section 1 of the Public Official Election Act that is not a provision at issue in this case, not the unconstitutionality of the instant provision. Therefore, we would not decide as to the unconstitutionality of the allegation in this case. 

IV. Conclusion

Therefore, we announce that the part of ‘offering public position’ of the provision at issue is unjusticiable and the part of the instant provision is not unconstitutional, in a unanimous opinion of participating Justices, except the opinion of dissenting by Justice Song, Doo-Hwan, Justice Lee, Jung-Mi, and Justice Kim, Yi-Su as presented in chapter V.

V. Dissenting Opinion of Justice Song Do-Hwan, Justice Lee Jungmi, and Justice Kim Yi-Su (Opinion of Unconstitutionality of the Instant Provision)

We find that the Instant Provision is unconstitutional and express our dissenting opinion as follows.

A. Whether the rule of clarity under the principle of nulla poena sine lege was violated

1. The rule of clarity, as a constitutional principle that represents an aspect of the rule of law principle, requires that the content of a law restricting fundamental rights must be clear. When the content of the law in its nature burdens individuals, especially in the context of criminal-related laws governed by the principle of nulla poena sine lege, a higher level of clarity is required and a stricter standard applies. In other words, the rule of clarity under the principle of nulla poena sine lege requires the legislators to stipulate the prohibited act and the substance of punishment, as well as the legal interest protected by the penal code at issue, in a way to enable anybody to understand them by using a common, non-arbitrary, method of interpretation(See 12-1 KCCR 169, 179, 98Hun-Ba37, February 24, 2000; 22-1(A) KCCR 479, 486, 2009Hun-Ba121, March 25).

2. As the majority opinion points out, the question of whether the Instant Provision violates the rule of clarity is mainly related to the element of “for the purpose of compensation for resigning candidacy.”

Basically, the Instant Provision, by using a grammatically incoherent expression, i.e. “for the purpose of compensation,” creates confusions. The dictionary meaning of ‘purpose’ is ‘the thing you plan to realize or a direction moving toward.’ Accordingly, the object of a purpose should be a pursued outcome of an act. The Instant Provision, however, sets the object of the purpose to be a ‘compensation,’ which means a ‘reward paid off in value for the work done.’ This indicates that while paying compensation may be an outcome of a specific act to be pursued, compensation itself cannot constitute a purpose. Here, if we interpret the phrase “for the purpose of compensation” to mean ‘as a compensation’ in order to make it sound grammatically more natural, we thereby in effect arbitrarily remove the element of ‘purpose,’ which the legislature clearly stipulated in the criminal code. Such interpretation is unacceptable. Moreover, even if we insert a specific verb between ‘purpose’ and ‘compensation,’ for instance “for the purpose of providing compensation,” the structural incongruence of the phrase in the Instant Provision is not resolved. Consequently, it is unclear what the phrase “for the purpose of compensation” of the Instant Provision means as an element of a crime.

In particular, it is not clear whether the Instant Provision provides for a purposeful crime. The fact that the interpretations on the Instant Provision of the lower courts and the Supreme Court are different plainly shows the point.

The court’s interpretation of the Instant Provision became an issue for the first time in this case since the legislation of the provision. With respect to the meaning of “for the purpose of compensation,” the district court and the appellate court (Seoul Central District Court 2011Go-Hap1212 et al., Seoul High Court 2012No248) contended that the Instant Provision does not prescribe a purposeful crime. The highest court (Supreme Court 2012Do4637), however, determined that the ‘purpose’ of the Instant Provision stipulates an element of a crime, which requires special subjectivity in addition to intent. Further, while its opinion as to the issue of purposeful crime was different from that of lower courts, the Supreme Court in fact regarded the meaning of ‘the purpose of compensation’ same as ‘the recognition of the compensatory nature,’ which the lower courts had used as the basis to find the intent with respect to ‘compensation.’ As such, the courts'''' interpretation hardly provides a clear guidance on the meaning of "for the purpose of compensation" in the Instant Provision.

On the other hand, by using the term ‘compensation’ that refers to benefit offered in return for something, while entitling the provision as ‘crime of corruption and inducement by interest toward candidates,’ the Instant Provision regulates not only ‘the act of offering money before the resignation of candidacy’ but also ‘the act of offering money after the resignation of candidacy.’ It presupposes that an act can ‘corrupt’ something, even if there is structurally nothing to ‘corrupt’ because the act of resignation took place before any money was offered. This increases confusions in interpreting the Instant Provision. For example, it is unclear whether the compensatory nature of the Instant Provision in fact indicates ‘a relationship with the act of resignation,’ or whether there should be some, regardless of the form, improper prior conduct (motivating act) that induces resignation.

In the end, the Instant Provision, by using a vague and grammatically incoherent expression “for the purpose of compensation for resigning candidacy,” obscures the content of the protected legal interest and the prohibited act by the provision. It makes it difficult to predict what kinds of conduct fall within the prohibited act and thereby allows those who apply the law to make an arbitrary decision regarding the Instant Provision.

Therefore, the Instant Provision is in violation of the rule of clarity under the principle of nulla poena sine lege.

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

Even if we accept the Supreme Court’s interpretation, the Instant Provision infringes on the freedom of political expression and the general freedom of action in violation of the principle against excessive restriction, and thus is unconstitutional.

1. The legislative purposes, as the majority opinion points out, to ensure the incorruptibility of the right to be elected and the fairness of election are indeed legitimate values. However, punishing an act of offering money at some point after the candidate has resigned, i.e. when there is not even an abstract risk of corrupting the candidate, is to regulate an act with no risk of unfairly influencing the decision of resignation and therefore irrelevant to securing the fairness of election. Furthermore, there is no way of affecting the decision of voters after the election has ended, even if the candidate would offer any economic benefits in relation to his or her resignation to the rival candidate who has already resigned.

In this regard, therefore, the Instant Provision has lost the appropriateness and reasonableness as a means to restrict fundamental rights.

In fact, if the reason for restricting the act of offering money to a person who used to be a candidate were to ensure the incorruptibility of the right to be elected and the fairness of election, a restriction against the one who offered money should in principle be limited to the case in which there was a prior improper conduct that has induced resignation of the rival candidate. And in such case, the punishment under Article 232 Section 1(1) of the Public Official Election Act would be a sufficient restriction. In other words, Article 232 Section 1(1) of the Public Official Election Act regulates major forms of prior improper conducts that induce resignation of a candidate, by punishing ‘an act of expressing a willingness to offer, or promise to offer, money, goods, transportation, banquet, other property interest, or public or private post'''' with an intention to have a candidate resign.

2. Even if we agree with the appropriateness of the means to restrict fundamental rights adopted in the Instant Provision, though abstractedly, for the reason of securing the incorruptibility of the right to be elected and the fairness of election as a recurrent system, the Instant Provision is against the principle of least restrictiveness of infringement on fundamental rights.

(A) First, the scope of restriction in the Instant Provision is excessively broad, because it prohibits all acts of offering money that have compensatory character related to the resignation, to the person who resigned candidacy, regardless of who is the person offering the money and when the act of offering money occurs. In order to resolve the problems caused by the excessively broad regulation, the legislature could find other means that would be less restrictive on fundamental rights, such as restricting the scope of applicable persons and time or the type of conduct. These means can meaningfully achieve the legislative purposes of the incorruptibility of the right to be elected and the fairness of the election.

(B) Furthermore, the Instant Provision in fact restricts the freedom to pursue the candidacy unification process based on policy alliance or political consolidation, which are considered normal and legitimate political activities in our modern democratic political process. A way for voters, especially political minorities, to use their rights to vote meaningfully in the election is to have a candidate or a party, the political tendency of which is close to theirs, pursue the candidacy unification process by forming a policy coalition or election alliance. The Instant Provision, however, makes it impossible to negotiate the reimbursement of election expenses in the candidacy unification process before the election.

Despite the Article 116 Section 1 of the Constitution, which proclaims public campaign financing system, a full public campaign financing system is not in place, and candidates assume a considerable portion of the election expenses. Especially, unlike other public officials elections for which public financing is possible through political parties, an election for the superintendent of an educational district, for which getting candidacy through nomination by a political party is not available, the candidate in principle has no choice but to assume the election expenses by himself or herself, and may have some supplementary support according to the voting rate, only if he or she gains votes of above certain percentage. Considering the context, unvaryingly prohibiting and punishing a candidate''''s act of offering money in a way to supplement the election expenses assumed by the other candidate who now resigns for political alliance, excessively restricts the freedom of political activities. Ignoring the cost of democracy arising in the candidacy unification process, despite the legitimacy and necessity of policy coalition and election alliance in modern democracy, is not desirable, nor can we regard that sharing the burden of election expenses, which has a public nature, among candidates who enter into political alliance, corrupts the campaign culture or undermines the reliability of the election.

After all, a criminal punishment against corruption of a candidate can be legitimized for the reason of the fairness of the election, only when the resignation of candidacy is motivated by his or her private interests, rather than by political will.

(C) From a comparative perspective, a restriction similar to the Instant Provision is rare, except for Japan, and even in Japan, it is hard to find a case where the relevant provision was applied and enforced to punish such act.

Of course, election laws in foreign countries cannot be the decisive standard in determining the constitutionality of the law of our country. A decision on the scope of freedom of political activities to be recognized in relation to political campaign should be made after the country''''s social situation, campaign culture, and the level of public awareness are comprehensively considered. However, the campaign culture of our country in these days has shown progress, as we have experienced the constitutional revision of 1987 achieved by mutual agreement between the ruling and opposition parties and then the peaceful transfer of power in 1997. Most of all, the democratization of the overall society backed by the enhanced freedom of press and the increased political awareness of the voters, asks for reconsidering application of the Instant Provision, which may be seen as a trace of the past elections controlled by money.

3. Although there is no doubt that the fairness of election and the incorruptibility of the right to be elected are important values in public elections, the public interest intended to additionally achieve by use of the Instant Provision, aside from the other provision (Article 232 Section 1(1)) that prohibits bribing a candidate before the candidate''''s resignation, is unclear or based on vague concerns. To the contrary, in our modern political culture in which candidacy unification through policy coalition is considered as one of normal and legitimate forms of political activities, the restriction that the Instant Provision causes on the freedom of political expression and the general freedom of action is not slight.

The election expenses are indispensable cost for people to form political opinions. Establishing a political coalition or election alliance is difficult to achieve in reality without an arrangement to share the expenses. In an election system where election expenses are not supported for resigning candidates, the possibility of making political coalition significantly reduces. This thereby can distort the freedom of election itself. Further, such a restriction may weaken the flexibility and dynamics of democratic opinion making in our society, and at the same time lead to underground transaction of money and goods, utterly destroying the principle of free election and the fairness of election in another meaning.

Most of all, considering that candidacy unification is a political phenomenon that can recurrently appear in public officials elections in any political parties, the Instant Provision, by offering a ground for endless political dispute around legality of supporting election expenses after candidacy unification, can be a factor deepening the political instability and the dependency of political process on the judiciary in the future (See 20-1(A) KCCR 139, 206, 2007Hun-Ma700, January 17, 2008). When a normal political activity is excessively restricted by an abstract legal regulation, it is unavoidable that the freedom of political activity, which constitutes the basis of democracy, is chilled.

Consequently, because we cannot find a reasonable balance between the public interest to be achieved and the negative effect caused by the Instant Provision, we conclude that the Instant Provision has substantially lost the balance of legal interests.

4. Therefore, the Instant Provision violates the principle against excessive restriction.

Justice Lee, Kang-Kook (presiding Justice), Song, Doo-Hwan, Park, Han-Chul, Lee, Jungmi, Kim, Yi-Su, Kim, Changiong, Ahn, Changho, Kang, Ilwon