공직선거법의 위헌성과 합헌적 해석

Abstract

This essay tries to “re”-interpret the provision of the §232 ① ii of the Public Official Election Act, according to which the prosecution has indicted Superintendent of Seoul Metropolitan Office of Education for bribing a competing candidate to step down from the candidacy during the election campaign period. The provision has so many deficits as to be held unconstitutional. Apparently, it can be read to punish any transaction of benefits or interests to the resigned candidate, irrespective of the reason of the resignation, and the prosecution is insisting as such. But, such reading would grant the prosecutors unconstitutionally wide discretions to indict every person for his/her transaction with ex-candidate as long as the prosecutor can prove that he/she had dolus eventualis to make such transaction for the consideration of the resignation, even if the transaction had no influence on the process and/or the result of the election. Obviously such reading should be unconstitutional, because it constitutes over-regulation of citizens’ electoral rights as well as their rights to transaction. Sometimes, the reading could let the prosecutors intervene the electoral process and saliently influence its results. This is the reason why this essay posits that the provision should be read narrowly, so as to regulate just the bribing behaviors designed to make ‘illegally articulated’ influence on the process and/or the results of the election. It says that the prior commitment on the “bribery” for the resignation must be proved in order to find the accused guilty on the count of violation of the provision.