공직선거법상 선거운동의 개념으로서 목적의사와 목적범의 판단기준 - 대법원 2016. 8. 26. 선고 2015도11812 전원합의체 판결을 중심으로 -

Abstract

Supreme Court Decision 2015 Do 11812 The ruling of the Supreme Court is a judgment that brought about a turning point in the interpretation of the concept of election campaign in the election of public office. There is an evaluation of the object judgment as a step forward in interpreting the freedom of election campaign in the direction of protecting the freedom of the election campaign in the framework of the current public election law. However, the Supreme Court has to solve the problem through the change of legislation Some point out that they have judged the problem circumvented. In this respect, the object judgment was mainly the analysis and evaluation from the constitutional point of view, despite the form of the criminal judgment. However, the public election law prescribes constitutional elements of election - related penalty regulations in addition to the definition of election campaign. In this context, it is shown that the concept and scope of the election campaign is not only a constitutional issue of freedom of election campaign and fairness of election but also a criterion of whether or not the election campaign is applicable as a constituent element of criminal offense. The majority opinion of the judgment is objectively judged on the externally marked act whether or not there was an intention to elect a particular candidate in a particular election. And that it should be judged based on the situation at the time of the act in terms of the electorate, not the national or legal experts concerned with the election. The purpose crime is not to require positive motivation or definite awareness, but merely to have an unintentional recognition. In the interpretation of the concept of election campaign, the majority opinion of the judgment should be interpreted in a limited manner according to the principle of 'strict interpretation'. In the strict sense, it can be said that it is interpretation result rather than basis of interpretation or interpretation method. In the legal methodology, this interpretation is an objective interpretation considering the purpose of legislative election law, such as freedom of election and fairness. The majority opinion is interpreted in consideration of the fairness of election and freedom of election campaign. Although the evaluation of the judgment is based on the interpretation of the constitutional amendment law to guarantee the freedom of election campaign, it should be distinguished from the legitimacy problem of limitation of the current law on the interpretation of the concept of election campaign. Therefore, it is desirable to dispute the constitutionality of the election campaign or the prohibition of the pre - election campaign, or to seek a fundamentally legal solution. It is not reasonable to interpret it as a restriction of the concept of the election campaign itself and not as a prohibited campaign or pre-election campaign.