[2] In a case where a public prosecutor only filed an appeal against the judgment of partial guilty and the remaining acquittal among the facts charged related to the crime of single offense, and the defendant did not file an appeal against the judgment of the court of final appeal

1. The judgment of the court below

A. On February 29, 2016, the summary of the facts charged in the instant case (excluding the part on acquittal in the grounds) is that the Defendant provided Nonindicted 2, Nonindicted 3, Nonindicted 4, and Nonindicted 5, who reside in the ○○○○ constituency, with a total of 35,200 won and food, for Nonindicted 1, who wishes to be a candidate for the ○○○ constituency in connection with the election of the 20th National Assembly member.

B. For reasons indicated in its reasoning, the lower court upheld the first instance judgment convicting the Defendant of this part of the facts charged, deeming that the Defendant contributed on behalf of a person who wishes to be a candidate regarding an election.

2. Judgment of the Supreme Court

A. Considering the language and text of Article 112(1) of the former Public Official Election Act (amended by Act No. 14073, Mar. 3, 2016; hereinafter the same) and the contents and purport of each provision on restrictions on contribution acts under the former Public Official Election Act, insofar as the Public Official Election Act specifies the other party to the contribution act through the concept of "relevant constituency", the act of contribution under Article 112(1) of the former Public Official Election Act can be deemed to be established on the premise that the constituency that exists in force at the time of the act can be established. However, Article 25(2) of the former Public Official Election Act provides that "the name and area of the constituency for National Assembly members shall be as shown in attached Table 1], and therefore, if the "election district" as provided in Article 112(1) of the former Public Official Election Act refers to a constituency for National Assembly members, it is reasonable to deem that the election district is prescribed in the attached Table 25(2) [Attachment 1] of the same Act at the time of the act.

B. However, on October 30, 2014, the Constitutional Court rendered a decision that "Article 25 (2) [Attachment Table 1] of the Public Official Election Act (amended by Act No. 11374, Feb. 29, 2012) does not conform with the Constitution, and the said schedule of the local constituency for the National Assembly shall continue to apply until the legislative amendment is made with the deadline of December 31, 2015 (see Constitutional Court Decision 2012Hun-Ma190, Oct. 30, 2014)" (see Constitutional Court Decision 2012Hun-Ma190, etc.), but the National Assembly did not confirm the new schedule of the local constituency for the National Assembly as of December 31, 2015, the said schedule of the local constituency for the National Assembly was invalidated from January 1, 2016, and the National Assembly finalized the new schedule by amending the Public Official Election Act as Act No. 14073, Mar. 3, 2016.

C. In light of the aforementioned legal principles, since the election district stipulated in Article 25(2) [Attachment 1] [Attachment 1] of the former Public Official Election Act does not become effective on February 29, 2016, which was the date on which the Defendant made a contribution in the facts charged in the instant case (excluding the part not guilty in the grounds for appeal) and the election district for the local constituency did not constitute a contribution act under the former Public Official Election Act, the Defendant’s act of offering goods in relation to the election for the local constituency National Assembly member does not constitute a contribution act under the former Public Official Election Act. Nevertheless,

D. In addition, among the facts charged in this case, the guilty part of the judgment of the court below and the remainder of the facts charged which the court below judged as not guilty of the reasons are the crimes of a single offense, and the prosecutor's appeal as to only the acquittal part of the facts charged, and even if the defendant did not appeal as to the judgment of the remaining innocence, the prosecutor's appeal under the principle of the non-appeal of appeal affects the entire guilty part and the acquittal part of the judgment, and thus, the conviction part is also transferred to the court of final appeal (see, e.g., Supreme Court Decision 2004Do501, Apr. 27, 2004). The part of the judgment of the court below on the grounds as seen earlier is reversed

3. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim So-young (Presiding Justice)