Second Appeal Hearing for Election Law Today
If Court Accepts, Trial Will Be Suspended
Criticism Mounts Over Alleged Delay Tactics Amid Early Presidential Election Speculation
On the afternoon of the 5th, Lee Jae-myung, leader of the Democratic Party of Korea, will attend the second appeal trial for election law violation charges held at the Seoul High Court. This trial is said to determine Lee's political fate. In the first trial, Lee was sentenced to one year in prison with a two-year probation, and if this verdict is finalized, he will be barred from running for public office for 10 years. During the hearing, the court will review documents and video evidence related to the trial and will deliberate on whether to accept witnesses and evidence requested by the prosecution and Lee's side.
Earlier, on the 4th, Lee's legal team submitted a request for a constitutional review of Article 250, Paragraph 1 of the Public Official Election Act, which punishes the offense of false statements made for election purposes, to the Criminal Division 6-2 of the Seoul High Court (Presiding Judges Choi Eun-jung, Lee Ye-seul, and Jung Jae-oh). They asked the trial court to refer the question of whether the relevant provision, which forms the basis of the trial, is unconstitutional to the Constitutional Court for a 'constitutional review.'
The problematic provision states that "anyone who publishes false facts by speech, broadcasting, newspapers, communication, or other methods for the purpose of election shall be punished by imprisonment of up to five years or a fine of up to 30 million won." Lee's side argues that this provision "violates the constitutional principles of clarity and prohibition of excess, infringing on freedom of expression." Lee himself stated on the 23rd of last month that "it is known that South Korea is the only country in the world with a provision that punishes candidates for publishing false facts."
Whether to refer the constitutional review to the Constitutional Court is at the discretion of the trial court. If the court decides to refer the case, the criminal trial will be suspended until the Constitutional Court issues its ruling. If the Constitutional Court rules the provision unconstitutional, the prosecution itself would effectively become invalid. Lee's side appears to be seeking this outcome. This is why there are suspicions that Lee, who is considering an 'early presidential election,' is attempting to delay the trial through this constitutional review request.
However, if the request is dismissed, the trial will proceed as usual. The timing of the court's notification of dismissal is also at the court's discretion; it may be announced during the trial or together with the verdict. Regarding precedents on Article 250, Paragraph 1 of the Public Official Election Act, there was a dismissal of a constitutional complaint in September 2022. This case involved the Democratic Party filing a constitutional complaint arguing that a 3 million won fine imposed on Lee in the second trial in 2019 for remarks related to the 'forced hospitalization of his elder brother' violated freedom of expression.
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