Constitutional review of invalidation of election due to election crimes by others

Abstract

Trials for election crimes function to punish criminal acts that infringe on the freedom of elections and undermine the fairness of elections. Indirectly, it restores the fairness of elections disturbed by election crimes. However, there are far more cases in which the result of an election is changed by punishment for election crimes than in cases where the result of an election is corrected through an election lawsuit. In particular, there are many constitutional problems with a system that uniformly invalidates elections only by sentences of imprisonment or fines of 3 million won or more for other people's election crimes, not their own. The invalidation of the election due to election crimes by others violates the constitutional principle of responsibility or self-responsibility, as well as due process of law, thereby violating the candidate's right to hold public office. Above all, it can impose a burden on judges to simultaneously consider the policy judgment on the invalidation of the elected candidate in sentencing for other people's election crimes, thereby damaging the unique function of the judiciary. Comparatively, the UK and Japan also recognize the invalidity of elections due to election crimes by others. However, apart from the criminal trial for election crimes, whether to invalidate the election due to election crimes is decided through the judgment of the election court or the court in charge of election litigation. These comparative legislative examples can support the argument that the election invalidation system under Articles 263 and 265 of the Public Official Election Act violates the due process of law and violates the candidate's right to hold public office. In order to overcome the unconstitutionality of the invalidation of elections due to election crimes by others, it is necessary to think about guaranteeing a separate procedure for invalidation of elections. Therefore, legislative improvement should be made in the direction of organizing a due process that can determine whether or not an election is invalid, separate from criminal trials for other people's election crimes.