곽노현 교육감 사건 대법원 판결 비판

Abstract

On September 27, 2012, Korean Supreme Court affirmed the appellate court’s decision that had sentenced Kwak Nohyun, Superintendent of the Seoul Metropolitan Office of Education, to one year imprisonment for ‘buying candidacy after resignation’ stipulated in Article 232①(2) of the Public Official Election Act. The adjudication had too many flaws to be justified. First, since the decision was made just one month after the three-justice-panel composition was changed, I doubt that it either violated the principle regarding panel composition in the Court Organization Act, or was made hastily without enough hearing. Second, the Court reached a conviction with no substantial evidence, and therefore violated the principle of ‘nullum crimen sine lege, nulla poena sine lege’. Third, this decision had a serious defect in form, in that while acknowledging, unlike the appellate court, the crime as one requiring the ‘purpose’, the Court delivered its own judgment on purpose without any substantial findings instead of remanding the case to the appellate court for a further inquiry. Fourth, the constitutional interpretation of the Court regarding the principle of clarity and that of proportionality was so obscure and improper; it put a heavy burden on the Constitutional Court. In conclusion, the Supreme Court’s decision as well as the provision of the Public Official Election Act was unconstitutional and thus violated the rights of Kwak Nohyun to hold public office. Therefore the Constitutional Court should declare the Public Official Election Act unconstitutional, and also invalidate the decision of the Supreme Court.