공직선거법상 허위사실공표죄와 표현의 자유

Abstract

Ensuring freedom of election and securing fairness in elections are important values that cannot be neglected. However, the two sides are bound to conflict, and if the fairness of the election is emphasized, the freedom of election can be retreated, and if the freedom of election is prioritized, the fairness of the election can be undermined. Under the Public Official Election Act, the crime of public declaration of false information has the legislative purpose of securing fairness in elections, but there is also a problem that may limit freedom of election. Therefore, the interpretation criteria for acknowledging this must be detailed. The Supreme Court's unanimous decision interpreted the scope of the 'public announcement' limitedly based on the awareness of the problem to expand election freedom. However, although I agree with the awareness of the problem to reduce the scope of punishment for the crime of disclosing false information, the dictionary meaning of the publication is clear, and adding the requirement of activism is a matter of caution. This is considered a factor to be considered in the sentencing standards. Therefore, it is considered reasonable to judge whether false facts are applicable and to consider requirements such as 'active', 'unilateral', 'intention', and 'inevitability' as sentencing standards in expressive actions. In addition, it is necessary to consider the 'impact on elections' as a sentencing standard. In order to invalidate the election, it is necessary to determine whether it had a decisive influence on the election. In other words, it is necessary to introduce the impact on elections and the activism of expression as a sentencing standard. In accordance with these sentencing standards, criminal punishment is imposed if necessary, but it is reasonable to interpret strictly the extent to which the election is invalidated. In the long run, it is necessary to revise the Public Official Election Act to raise the criteria for invalidating the election of false information disclosure.