CONTENTS
- 1. Public Official Election Act Litigation, the Detailed Background
- - Public Official Election Act Litigation, the Relevant Statutes
- 2. Public Official Election Act Litigation, the Lower Court's Determination
- 3. Public Official Election Act Litigation, the Supreme Court's Determination
- 4. Public Official Election Act Litigation, Daeryun's Strategy
1. Public Official Election Act Litigation, the Detailed Background
🔗Violation of the Public Official Election Act The background concerning A, who was indicted on this charge, is as follows.
Ahead of the 2021 by-election for the head of a local government, A was charged with distributing several hundred documents promoting a particular candidate.
The document in question contained the statement, “If candidate OOO is elected, redevelopment of the area will be revitalized.”
The prosecution accordingly brought a public prosecution, asserting that A had violated Article 93 of the Public Official Election Act.
Public Official Election Act Litigation, the Relevant Statutes
Former Public Official Election Act, Article 93 (Prohibition of Distribution, Posting, etc. of Documents and Drawings by Unlawful Means)
(1) From 180 days before an election day until the election day, no person may, for the purpose of influencing the election, and except as provided for in this Act, distribute, affix, scatter, screen, or post any advertisement, greeting card, poster, photograph, document or drawing, printed matter, audio or video tape, or any other similar thing that contains content supporting, recommending, or opposing a political party or a candidate, or that indicates the name of a political party or the name of a candidate.
☞ On August 30, 2023, the statute was amended from ‘180 days’ to ‘120 days.’
Public Official Election Act, Article 255 (Crime of Illegal Election Campaigning)
(2) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than two years or by a fine not exceeding four million won.
5. A person who, in violation of Article 93 (1) (Prohibition of Distribution, Posting, etc. of Documents and Drawings by Unlawful Means), distributes, affixes, scatters, posts, or screens documents, drawings, etc., or causes another to do so, or who, in violation of paragraph (2) of the same Article, places an advertisement or appears, or causes another to do so
2. Public Official Election Act Litigation, the Lower Court's Determination
The lower court, which conducted the trial of A, who had been brought to trial on the Public Official Election Act charge, rendered a ‘judgment of conviction.’
In doing so, it sentenced A to a fine.
The reason was that, although the Public Official Election Act prohibits the distribution or scattering of any related document expressing support for or opposition to a candidate, as well as any document indicating a political party's name or a candidate's name, from 180 days before the election day, A had violated this provision.
3. Public Official Election Act Litigation, the Supreme Court's Determination
The Supreme Court's determination, however, was different.
It held that the lower judgment was erroneous, reversed it, and remanded the case to the lower court.
The Supreme Court relied on the Constitutional Court's ‘decision of nonconformity to the Constitution’ concerning the Public Official Election Act as its basis.
From 2022 through 2023, the Constitutional Court had issued a decision holding that “the portions of Article 93 of the Public Official Election Act relating to ‘posting posters, distributing or posting printed matter, and posting documents and drawings’ do not conform to the Constitution.”
The reason was that prohibiting the posting and distribution of election-related posters, printed matter, advertisements, and the like for an excessively long period may infringe on the freedom of political expression.
That said, the ‘scattering of documents,’ which was the charge against A, was not included among the matters subject to the Constitutional Court's determination.
Nevertheless, the Supreme Court explained that, given that the Constitutional Court had rendered a decision of unconstitutionality on similar prohibitory provisions, there was a strong possibility that the ‘scattering of documents’ provision applied to A would likewise be assessed as violating the principle against excessive restriction.
It added that, despite these circumstances, the lower court had committed an error affecting the judgment by upholding, without properly examining the Constitutional Court's decision, the first-instance judgment that had imposed a fine.
4. Public Official Election Act Litigation, Daeryun's Strategy
This analysis examined a Supreme Court judgment holding that, where the Constitutional Court has issued a decision of nonconformity to the Constitution concerning the Public Official Election Act, the lower court must closely examine similar types of offenses.
Through this judgment, the Supreme Court emphasized that, even where the charge applied to a defendant was not the direct subject of the Constitutional Court's deliberations, if decisions of nonconformity to the Constitution on similar provisions have been issued in succession, the court too must carefully examine the unconstitutionality of the provision in question.
In accordance with this judgment, the court on remand is expected to request that the prosecution amend the indictment or to refer the matter to the Constitutional Court for adjudication on the constitutionality of the statute.
Freedom of expression is the most fundamental right guaranteed under the Constitution, but relatively strict standards apply in the context of elections.
There are not a few cases in which content created or posted without much thought turns out to violate current law, leading to an investigation.
If you become subject to an investigation for a related offense, you should promptly seek the assistance of a dedicated legal team.
At Daeryun Law Firm LLP, attorneys experienced in election-law matters work together as a single team, led by veteran attorneys with an average of more than 20 years of legal experience, to provide tailored assistance to clients.
If you have any related questions, you are welcome to request a 🔗consultation with Daeryun Law Firm LLP at any time.
