선거 관련 법제에 관한 헌법학적 연구 - 선거범죄로 인한 당선무효를 중심으로 -

Abstract

This study focuses on Articles 264 and 265 of the Public Official Election Act, which declares a candidate’s election result to be overturned if the candidate or their campaign manager commits election crimes resulting in imprisonment or fines above a certain amount. These provisions aim to ensure fair elections by preventing various forms of electoral misconduct. However, firstly the impact of judicial sentencing for election crimes on the validity of a candidate’s election violates the constitutional principle of separation of powers. Conversely, this can diminish or even undermine the original function of criminal justice. When judges must consider the collateral consequences of election invalidation alongside the appropriate punishment for a defendant’s criminal actions, it can distort the form and magnitude of their sentencing. Secondly, article 265 of the Public Official Election Act, which automatically invalidates a candidate’s election upon conviction of a separate individual for election crimes resulting in imprisonment or substantial fines, violates the principle of guilt by association. It also denies the candidate’s opportunity to defend him/herself during the trial process, infringing upon the principle of due process. Finally, the issue arises regarding the validity of the decision to overturn the election result under the Public Official Election Act, as it lacks substantive grounds. In principle, invalidation should retroactively nullify all legal effects related to the act in question, restoring legal relationships to their state prior to invalidation. However, current provisions can not achieve this outcome.