공직선거법 제232조 제1항 제2호(소위 사후매수죄)의 위헌성 검토

• 영문명: The unconstitutionality of the "Item 2, Clause 1 of Article 232" of the Public Post Election Act
• 발행기관: 한국형사정책학회
• 저자명: 박혜진(Park, Hye Jin)
• 간행물 정보: 『형사정책』刑事政策 第25卷 第2號, 179~205쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2013.08.31

영문 초록

Obviously, The law should be clear, it should be strict in the legal interpretation of criminal rules, and any analogical or extensive interpretation should not be allowed. The "Item 2, Clause 1 of Article 232" of the Public Post Election Act prohibits candidates from several actions including giving money to an ex-candidate in consideration of his/her resignation from candidacy. The prohibited action is expected to be exercised after the resignation, so the meaning of "as consideration" is the clue to punishability in case when a pre-resignation bargain had not existed. The legal meanings of it so far turned out mostly to be a prise or a wage which means a benefit in return in a contract. And it could mean a benefit occurring from providing one's property or service. However, 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. But if the transaction had no influence on the process and/or the result of the election, that cannot be punished, because it is not an abuse of the benefit and protection of the Public Official Election Act. Moreover, such reading should be unconstitutional, because it constitutes over-regulation of citizen' electoral rights as well as their rights to transaction. Sometimes, the reading could let the prosecutors intervene the electoral process and remarkable influence its result, and seems to have a political intent. In my opinion, although the late, the Constitutional Court should declare the Public Official Election Act unconstitutional and order the government to revise the provision to be clearly.

목차

Ⅰ. 문제제기

Ⅱ. 사건의 개요와 헌법재판소의 결정요지

Ⅲ. 소위 사후매수죄의 연혁 및 외국의 입법례와의 비교

Ⅳ. 공직선거법 제232조 제1항 제2호(소위 사후매수죄)의 위헌성 검토

Ⅴ. 맺음말

참고문헌

키워드

공직선거법 제232조 제1항 제2호 사후매수죄 명확성의 원칙 위헌성 the "Item 2 Clause 1 of Article 232" of the Public Post Election Act the unconstitutionality the principle of Definiteness so-called 'crime of buying candidacy after resignation' as compensation