[2] The meaning of "the relevant election day", which is the initial date of the statute of limitations under the main sentence of Article 268 (1) of the Public Official Election Act (=the voting date of an election for public office directly related to the election crimes), and in cases where the election crime is a violation of the Public Official Election Act concerning the campaign for the intraparty competition, the initial date of the statute of limitations for the election

[3] Whether the “public opinion poll on election” under Article 108(5) and (11) of the Public Official Election Act includes “public opinion poll on election” (affirmative)

[4] The meaning of "persons related to the competition campaign" under Article 230 (7) 2 of the Public Official Election Act

The Public Official Election Act does not have a definition on voting or public opinion poll. The prior definition of voting is to pay in a certain place with the consent or opposition of the members or with the intention of opposing the matter. The Public Official Election Act sets up a polling station by marking the voting method in the ballot paper with respect to an election for public office and limits the regulations on ballot papers and ballot boxes (Articles 146(1), 147, 150, 151, and 159), but there is no restriction on the voting method with respect to the intra-party competition. Therefore, it is sufficient that the method of voting for the intra-party competition does not necessarily require that the method of voting for the intra-party competition should be the ballot paper, and it is sufficient that any specific person among the candidates for the intra-party competition expresses his/her intent to become a candidate.

Article 108(1) and (2) of the Public Official Election Act does not provide a separate definition provision for public opinion poll, but does not stipulate that public opinion poll is included in the intra-party competition by allowing public opinion poll using a method similar to that for a single vote or a seal vote under certain restrictions, or a similar model of ballot (Article 108(1) and (2)). In addition, it is possible to substitute intra-party competition through public opinion poll and in certain cases, it is also included in the intra-party competition (Article 57-2(2)).

In full view of the contents of the above provisions and the legislative purport of restricting the intra-party competition campaign, the intra-party competition, which requires political parties to express their intent to choose who is a candidate for the election among the candidates for the intra-party competition, constitutes “the intra-party competition, which is held by giving the right to vote to the party members and those who are not the party members,” under Article 57-3(1) of the Public Official Election Act, constitutes “the intra-party competition, which is held by giving the right to vote to the party members and those who are not the party members,” and the method of exercising the right to vote is not always restricted by marking on the ballot paper,

[2] The main text of Article 268(1) of the Public Official Election Act provides that "the prescription of a public prosecution against any crime under this Act shall expire at the expiration of six months (six months after the day on which the relevant act was committed in the case of a crime committed after the election day) after the relevant election day." The term "relevant election day" refers to the voting day for an election for public office directly related to the relevant election crime. The same applies to a case where the election crime is a crime of violating the Public Official Election Act concerning the intraparty election campaign. Thus, the initial date of the prescription of a public prosecution against such election crime is not the date of the intraparty election but the

[3] Article 8-8 (8) of the Public Official Election Act provides, “Public opinion poll falling under any of the following subparagraphs shall not be deemed public opinion poll on election under this Act” and “public opinion poll on intraparty competition” does not exclude public opinion poll on election under the Public Official Election Act. Considering the content and content of the provisions of the Public Official Election Act, the details and content of the amendment of the relevant provisions of the Public Official Election Act relating to public opinion poll on election, the legislative purport of the provisions regarding public opinion poll on regulation of public opinion poll to prevent abuse of public opinion poll by means of election campaign for specific candidates, and to ensure the fairness, accuracy, and reliability of public opinion poll, the “public opinion poll on election” under Article 108 (5) and (11) of the Public Official Election Act shall also

[4] The Public Official Election Act separates the intraparty competition for the election of public officials and the recommendation of the political party, and the purpose, object, act, etc. to be regulated by the Public Official Election Act differs from the one concerning the election of public officials and the intraparty competition. However, in light of the specific contents and expression methods, such as the scope of the counter-party under each subparagraph of Article 230(1)1 and 4 of the Public Official Election Act, the provisions concerning the election of public officials, and the relationship with each other under Article 230(7)1 and 2 of the Public Official Election Act, which are the regulations concerning the election of public officials, the scope of the counter-party, whether the specific purpose is required, the mutual relationship between each provision, and other penal provisions, the "persons related to the intraparty competition" under Article 230(7)2 of the Public Official Election Act shall be interpreted as widely referring to persons who are engaged in the intraparty competition or are in charge

1. Judgment on the grounds of appeal by the prosecutor

A. Article 57-2 of the Public Official Election Act provides that where a political party conducts a competition campaign (including a public opinion poll substituting the intra-party competition conducted by giving additional points, etc. to women or disabled persons) to recommend candidates for the intra-party election, i.e., the political party may recommend candidates for the intra-party election, and where a political party conducts an intra-party competition (including a public opinion poll substituting the intra-party competition conducted by giving them additional points, etc. according to the party constitution and regulations) , anyone who is not elected as a candidate for the same constituency of the relevant election may not be registered as a candidate for the intra-party competition. Article 57-3(1) provides that the intra-party competition campaign cannot be conducted by giving their right to vote for the intra-party competition and conducted by any party other than a party member and any non-party member, and limited the methods of the intra-party competition campaign for 20-party competition to prevent any person from participating in the intra-party competition campaign (see Supreme Court Decision 200Do1272, May 9, 2013).

The Public Official Election Act does not have a definition on voting or public opinion poll. The prior definition of voting is to pay in a certain place with the consent or opposition of the members or with the intention of opposing the matter. The Public Official Election Act sets up a polling station by marking the voting method in the ballot paper with respect to an election for public office and limits the regulations on ballot papers and ballot boxes (Articles 146(1), 147, 150, 151, and 159), but there is no restriction on the voting method with respect to the intra-party competition. Therefore, it is sufficient that the method of voting for the intra-party competition does not necessarily require that the method of voting for the intra-party competition should be the ballot paper, and it is sufficient that any specific person among the candidates for the intra-party competition expresses his/her intent to become a candidate.

Article 108(1) and (2) of the Public Official Election Act does not provide a separate definition provision for public opinion poll, but does not stipulate that public opinion poll is included in the intra-party competition by allowing public opinion poll using a method similar to that for a single vote or a seal vote under certain restrictions, or a similar model of ballot (Article 108(1) and (2)). In addition, it is possible to substitute intra-party competition through public opinion poll and in certain cases, it is also included in the intra-party competition (Article 57-2(2)).

In full view of the contents of the above provisions and the legislative purport of restricting the intra-party competition campaign, the intra-party competition, which requires political parties to express their intent to choose who is a candidate for the election among the candidates for the intra-party competition, constitutes “the intra-party competition, which is held by giving the right to vote to the party members and those who are not the party members,” under Article 57-3(1) of the Public Official Election Act, constitutes “the intra-party competition, which is held by giving the right to vote to the party members and those who are not the party members,” and the method of exercising the right to vote is not always restricted by marking on the ballot paper,

B. The lower court determined as follows.

1) Under Article 57-3 of the Public Official Election Act, the primary election that limits the competition campaign method constitutes only the primary election that grants voting rights to the party members and those who are not the party members, and does not fall under the primary election that conducts public opinion polls without granting voting rights to those who are not the party members.

2) The intra-party competition for the election of ○○○○○○○ Party candidate in the 7th nationwide local election in 2018 (hereinafter “instant intra-party competition”) was conducted by combining 50% of the vote of the responsible party members and 50% of the general △△△ citizen’s opinion poll, and the competition was not conducted by granting the right to vote to a person who is not a member of the intra-party competition. As such, Article 57-3 of the Public Official Election Act does not constitute the intra-party competition that restricts

Therefore, among the facts charged in the instant case, the violation of the Public Official Election Act due to the violation of the primary election campaign method constitutes a crime.

C. However, examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court erred by misapprehending the legal doctrine on “party competition for which a political party grants voting rights to persons who are not party members and party members,” and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

The reasons are as follows.

1) Before the competition campaign period, the Defendant established and operated a similar election campaign office for the purpose of conducting the competition campaign in relation to the instant intra-party competition, and appealed to support in the form of direct telephone conversations between the sender and receiver through Nonindicted 1 and Nonindicted 2, and was engaged in activities to inform the responsible party of the mobile voting method in order to raise his/her mobile revenue ratio during the competition campaign period. However, the instant intra-party competition campaign was conducted by reflecting 50% of the voting for all responsible party members and the public opinion poll for the general △△△ citizens (the size of this vote 3,000) and recommended a candidate for public office based on the result. Public opinion poll was conducted by a public opinion poll company for two days from April 7, 2018 using the mobile phone virtual phone number data provided by a mobile phone operator to April 8, 2018, and notified the candidate of each candidate’s experience and name.

2) According to the above factual relations, the instant intra-party competition constitutes “party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party

2. Judgment on the Defendant’s grounds of appeal

A. As to the starting date of the statute of limitations for the crime related to the intraparty competition

The main text of Article 268(1) of the Public Official Election Act provides, “The prescription of a public prosecution against any crime under this Act shall expire six months after the relevant election day (six months after the relevant act was committed in the case of a crime committed after the election day).” The term “relevant election day” refers to the voting day for an election for public office directly related to the relevant election crime (see Supreme Court Decision 2006Do3026, Aug. 25, 2006, etc.). The same applies to the case where the election crime is a violation of the Public Official Election Act concerning the intraparty election campaign. As such, the initial date of the prescription of a public prosecution against the election crime is not the date of the intraparty election but the voting day for an election for public office directly related to the

The lower court determined that the statute of limitations in the instant case was expired six months after June 13, 2018, the election date for public office. Examining the reasoning of the lower judgment and the evidence duly admitted and examined in light of the aforementioned legal doctrine, the lower court did not err in its judgment by misapprehending the legal doctrine on the initial date of the statute of limitations in Article 268(1) of the Public Official Election Act.

B. As to whether the public opinion poll related to the intraparty competition is included in the public opinion poll on the election under Articles 108(5) and 108(11) of the Public Official Election Act

Article 8-8(8) of the Public Official Election Act provides, “Public opinion poll falling under any of the following subparagraphs shall not be deemed public opinion poll on an election under this Act” and “public opinion poll on an election under the Public Official Election Act is not excluded from public opinion poll on an election under the Public Official Election Act. In light of the content and contents of the provisions of the Public Official Election Act, the details and contents of the amendment of the provisions related to public opinion poll on an election related to public opinion poll, the legislative intent of the provisions related to public opinion poll on regulations on public opinion poll to prevent abuse of public opinion poll as a means of election for a specific candidate, and to ensure fairness, accuracy, and reliability of public opinion poll, the “public opinion poll on an election” under Article 108(5) and (1

The lower court determined that the Defendant violated Article 108(5) and (11) of the Public Official Election Act by asking questions as to whether he/she is a candidate who supports the candidate without disclosing the name and telephone number of the public opinion poll institution and organization, by taking measures, such as call-up of intraparty competition, as indicated in its reasoning.

Examining the reasoning of the lower judgment and the evidence duly admitted and examined in light of the aforementioned legal doctrine, the lower court did not err by misapprehending the legal doctrine on the meaning and scope of “public opinion poll on election” under the Public Official Election Act.

C. Regarding the meaning of "persons related to the competition campaign" under Article 230 (7) 2 of the Public Official Election Act

1) The Public Official Election Act separates the intraparty competition for the election of public officials and the recommendation of the political party. The purpose, object, act, etc. to regulate the public official election and the intraparty competition are also different from each other. However, in light of the specific contents and expression methods, such as the scope of the counter-party under each subparagraph of Article 230(1)1 and 4 of the Public Official Election Act, the provisions on the public official election, and the relation with each other under Article 230(7)1 and 2 of the Public Official Election Act, which are the regulations on the public official election, the scope of the counter-party, whether the specific purpose is required, the mutual relationship between each provision, and other penal provisions, the "persons related to the intraparty competition" under Article 230(7)2 of the Public Official Election Act shall be interpreted as widely referring to persons who engage in the intraparty competition or handle the affairs related to the intraparty competition (see Supreme Court Decision 2006Do8134, Jun. 1, 2007).

2) Based on its stated reasoning, the lower court determined that the persons who received money from Nonindicted 3 are those who actually participated in the intra-party competition campaign by promoting the Defendant’s success in the intra-party competition, and fall under “persons related to the intra-party competition” under Article 230(7)2 of the Public Official Election Act.

3) Examining the reasoning of the lower judgment and the evidence duly admitted and examined in light of the aforementioned legal doctrine, the lower court did not err by misapprehending the legal doctrine regarding the meaning of persons related to the competition campaign under Article 230(7)2 of the Public Official Election Act.

D. As to the allegation in the grounds of appeal regarding Article 60-4 of the Public Official Election Act

The allegation in the grounds of appeal in this part is that the defendant's act of selling campaign promise collection at his election campaign office constitutes a sale by ordinary methods stipulated in Article 60-4 (1) of the Public Official Election Act. However, this is not a legitimate ground of appeal, as the defendant alleged in the original judgment as the grounds of appeal or asserts matters which the court below did not judge ex officio (see Supreme Court en banc Decision 2017Do16593-1, Mar. 21, 2019, etc.).

3. Scope of reversal

For the foregoing reasons, the part of the judgment of not guilty among the judgment of the court below should be reversed. However, the part of the judgment of the court below on the reversal should be sentenced to a single punishment for all of the facts in relation to concurrent crimes under the former part of Article 37 of the Criminal Act

4. Conclusion

Therefore, 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 on the bench.

Justices Lee Ki-taik (Presiding Justice)