후보매수죄

Abstract

This article aims at giving some comments on the decision by the Central District Court of Seoul on crime of selling or buying candidacy after resignation stipulated in Article 232, Section 1, paragraph 2 of the Public Official Election Act. The sentencing of the court is voluminous enough to represent the story close to truth of the case. But application of law or legal reasoning of the court is apparently unusual. The crime story by the court seems greatly different from the prosecutor’s scenario, but indeed remains under the prosecutor’s frame of selling and buying the candidacy. The main points of this comment will be summarized as follows:The first part of my comment addresses that the sentencing court makes fallacy of petitio principii. The court unwarrantedly regards the doubtful political negotiation by Kwak’s election staff as an established crime. But it will be argued that the court ruling might run against the principle of individual responsibility or principle of legality. The court should bear it in mind that the secular courtroom is different from the religious court which has recourse to the moral criterion of perfection. Second, the sentencing court acknowledged by and large the factual situations which the accused and their lawyers maintained, but failed to develop the legal tools and methods appropriate to explain and solve this case of money-giving. The logic of the court is no more than a modification of the broad consideration as developed in the crime of bribery. The court found the cognition of the consideration by the resigned candidate Park, Myung-Ki who took the money from Kwak, Nohyun, Superintendent of the Seoul Metropolitan Office of Education. Further, the court concludes that Kwak and his mediator Kang, Kyong-Son had a willful negligence of Park’s criminal intent concerning the connection of consideration. But this ruling neglects the logical structure of Absichtsdelikt(crime of purpose). This article reaffirms that the court ruling is typically a contra legem interpretation, as long as the purpose of the provision in this case belongs to money-donors’, not money-donee’s. Third, the money-giving story includes a lot of elements which can not fully be explained in terms of the candidacy-selling scenario by the sentencing court. The exclusionary reason for money-giving is supposedly related to the danger of extreme choice by Park who suffered from financial predicament and extreme psychological crisis after he withdrew his candidacy. This aspect of money-giving can be placed as the good-will aid from the right of necessity by Kwak and Kang. In conclusion, this financial aid without prior engagement of money-giving before the resignation of candidacy is not a crime, but an action free from law. This action from the right of necessity should be at least justified or exculpated in terms of law.