[2] The case holding that the above hospitalization room does not constitute a "title" prohibited from visiting for election campaign purposes under the Public Official Election Act, in a case where a local election candidate visited the residents who were hospitalized in the hospital room

[2] The case holding that the above hospitalization room does not constitute "title (title)" prohibited from visiting for election campaign purposes under the Public Official Election Act, in case where a local election candidate visited the residents who were hospitalized in the hospital room

At around 15:30 on January 6, 2006, at the Daegu-gu Daegu-dong Hospital, Nonindicted 1, and Nonindicted 2, as well as at the 645 office located in the 645 room, the residents of the above erogic area were to find out Nonindicted 3, who were hospitalized in the 645 room, and thereafter, the residents of the above erogic area were to take out the election at around 5 minutes of body, and Nonindicted 3 was given the election campaign that was not permitted by the Act prior to the election campaign period, on behalf of Nonindicted 3.

1. Statement of the first protocol of suspect examination prepared by the prosecutor on the accused;

1. Statement on Nonindicted 3’s statement prepared by the prosecutor

Article 254(3) of the Public Official Election Act, Selection of a fine

1. Punishment to be suspended: Fine of 500,000 won;

1. Detention in a workhouse;

Articles 70 and 69(2)(50,000 won per day) of the Criminal Act

1. Suspension of sentence;

Article 59(1) of the Criminal Act (Article 59(1) of the Criminal Act (Article 59(1) appears to have visited Non-Indicted 4's sick room between the sick and Sick, it does not seem to have actively complained of support, and only about five minutes of visit to the extent of informing him/her of the scheduled fact of going out and going out only, and the time of visit was about 5 minutes in addition to the fine, there is no special criminal record other than the twice fine, and the defendant is in depth against his/her reputation. In addition, it is obvious that the defendant suffered damage to his/her reputation that cannot be reduced by a criminal complaint against sexual indecent act committed on the part of the complainant before the election, and continued investigation into the act of contribution made by the same complainant after the election (Article 4 of the Act on Indecent Acts and the act of contribution was completed with no suspicion).)

On May 31, 2006, the Defendant was elected from the 4th election of Dong-si local government, which was implemented on May 31, 2006, to the 2nd election district of Gyeongbuk-gun to be the candidate for Gyeongbuk-do council members. Notwithstanding the fact that no one could visit each house for election campaign, at around 15:20 on January 6, 2006, the Defendant found Nonindicted 4 who was hospitalized in the 10th election of Do-dong, Daegu-gu, Daegu-gu, as well as Nonindicted 1 and 2 on the 10th election of Do-dong local government, and continued to find the above 6th election campaign to be the 2nd election of Do-dong local government members by finding Nonindicted 3 who was hospitalized in the 645 unit of Do-dong local government office, and then notified the above 2nd 5th Do-dong residents of his size to the 2nd 5th Do-dong local government.

2. Relevant provisions;

Article 255 (Unlawful Election Campaign)

(1) Any of the following persons shall be punished by imprisonment for not more than three years or by a fine not exceeding six million won:

17. A person who visits or makes another person visit door to door, in contravention of the provisions of Article 106 (1) or (3);

Article 106 (Restriction on House-to-House Visits)

(1) No one shall visit door to door for an election campaign or for the solicitation of admission during the election period.

(2) Notwithstanding the provisions of paragraph (1), a person who is eligible to engage in an election campaign may appeal for support for a political party or candidate at a place where ceremony of coming-of-age, marriage, funeral and marriage is held, and at a road, market, store, bank, waiting room, or other open place where many people

(3) No one shall visit door-to-house for the notification of a speech or interview at an open place during the election period.

3. Determination

A. Article 106(1) of the Public Official Election Act prohibits the Defendant from visiting door to door for election campaign. We first examine whether each hospitalization room on the facts charged by the Defendant (the fact that the Defendant visited the door according to each evidence in the market) constitutes “title” under Article 106(1) of the Public Official Election Act.

(1) The meaning of "title" under Article 106 (1) of the Public Official Election Act

The interpretation of penal provisions must be strict, and the interpretation of the meaning of the express provision to the disadvantage of the defendant is not permitted because it is against the principle of no punishment without the law (see Supreme Court Decision 2006Do265 delivered on June 2, 2006, etc.).

Article 106 (1) of the Public Official Election Act provides that the term "house" refers not only to a house or a building, but also to a place that can be seen as a place outside the house, etc. (Supreme Court Decision 99Do2315 delivered on November 12, 199) or regarding the scope of "house" itself, the term is based on the prior meaning of the above term (the meaning of "house, house, etc. consisting of family members in the family register, and is used in the general sense of society as above), and the provision system of Article 106 (2) of the Public Official Election Act provides that a place where a visit is allowed shall be construed as "house, house, or other similar living space in a non-public place under the factual control and management of the visitor."

(2) Whether each of the instant hospitalization rooms constitutes “No. 1”

Basically, a hospital is a place where a large number of people can freely enter the hospital as a place of business for treating patients. The inside hospital is a place where a patient temporarily leaves the hospital for the effective provision or implementation of medical practice (regular injection, medication, operation atmosphere, stability after surgery, etc.) (i.e., a place where a patient remains temporarily at the hospital’s request until the hospital completes medical treatment for the purpose of medical treatment). Although there are certain restrictions such as the hospital’s age, time, etc., the visiting person is a place where anyone who wants to visit the hospital within the time limit of the visit can freely enter the hospital for medical treatment or care of illness (i.e., a place where the patient is no patient in the hospital’s room and most of the patient’s rooms can freely enter the hospital’s room (i.e., a place where the patient remains temporarily at the hospital’s request until the hospital completes the treatment for the purpose of medical treatment). In particular, considering that the hospital itself does not have a position in the constituency of the defendant, it appears that the patient’s purpose of the visit and the defendant’s room cannot be punished.

(3) Determination of the Prosecutor’s assertion

(1) As to the assertion based on the form of provision

Article 106(2) of the Public Official Election Act provides that “A person may appeal to support a political party or candidate at a road, market, store, bank, large room, or any other open place where many people pass and pass,” thereby allowing election campaigns at an open place to take the form of exceptions to paragraph (1). However, it does not necessarily mean that all the locations of the road, market, etc. listed in paragraph (2) are necessarily subject to subparagraph 1 of paragraph (1) (the concept of “title” cannot be seen as falling under subparagraph 1). Thus, even if the concept of “road” does not fall under “a open place where many people pass and pass” as provided in paragraph (2), it cannot be said that the hospitalization room falls under subparagraph 1 of paragraph (2).

② As to the assertion based on the legislative intent

Although the above provision allows a door-to-door visit directly face with electors at a place that is not open to the general public, it is highly probable that the act of impairing the freedom of election and the fairness of election will be committed by using the opportunity, such as purchasing, entertainment, intimidation, inducing interests, slandering other candidates, and harming them, etc. In addition, it is highly likely that the act of impairing the freedom and fairness of election is likely to be committed by the candidate, as it causes dancing between the candidates and excessive competition, and excessive competition among the candidates, and it is difficult to realize the substantial equality of election campaigns between the candidates because of the favorable advantage of the fund power, organizational power, and mobilization power, etc. As such, visiting the entrance room as in this case is prohibited in light of the legislative purport of the above provision, it may be deemed that there is a need to prohibit in light of the legislative purport of the above provision, but it cannot be said that all acts requiring the prohibition of legal regulations are not included, and thus it cannot be permitted in the principle of no punishment without law to expand penal provisions to the disadvantage of the defendant.

B. Therefore, since the facts charged in the primary charge of this case constitute a case where there is no proof of crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of a crime of violating the Public Official Election Act due to prior election campaign, which is the ancillary charge

Judges Lee Jae-hoon (Presiding Judge)