[2] The meaning of "contribution" under Article 112 (1) of the Public Official Election Act and the scope of the other party to the contribution

[3] In a case where the defendant was prosecuted for violating the Public Official Election Act by providing a candidate Gap's election campaign manager and volunteers who participated in the five-time nationwide local election campaign market election campaign, with his own meals, and making his election campaign for the election of Gap, the case affirming the judgment below holding that the above act constitutes an advance election campaign and contribution act

1. As to Defendant 1’s ground of appeal

The appellate court shall judge the grounds included in the grounds for appeal, and may decide ex officio on the grounds that affect the judgment, even if they are not included in the grounds for appeal (see Article 364 (1) and (2) of the Criminal Procedure Act).

Since a final appeal is a follow-up trial on the judgment of the appellate court, matters not subject to a review in the appellate court are not different from the scope of the judgment of the court of final appeal, so it cannot be deemed as the grounds for final appeal for reasons other than those which the defendant did not assert as the grounds for final appeal in the appellate court or are subject to a review ex officio (see Supreme Court Decision 2006Do2104, Jun. 30, 200

According to the records, Defendant 1 appealed against the judgment of the court of first instance, and asserted only unfair sentencing on the grounds of appeal, and further withdrawn the part which appears to be the misapprehension of the legal principles on the date of the first trial of the court below. In addition, the court below did not consider Defendant 1’s assertion of misapprehension of legal principles

In such a case, the argument that the lower court erred by misapprehending the legal principles cannot be a legitimate ground for appeal. Furthermore, even if ex officio examination is conducted, the lower court’s judgment cannot be deemed to have any illegality as alleged in the grounds

In addition, even if the court below did not decide on the misunderstanding of legal principles not included in the grounds for appeal by Defendant 1, it cannot be said that the court failed to render a decision in violation of Article 364 of the Criminal Procedure Act.

2. As to Defendant 2’s ground of appeal

According to the records, Defendant 2 appealed against the judgment of the court of first instance, and argued to the effect of mistake of facts and misapprehension of legal principles as well as unfair sentencing as the grounds for appeal, but withdrawn the allegation of mistake of facts and misapprehension of legal principles on the first day of the judgment of the court of first instance. In addition, the court below did not consider Defendant 2’

In such a case, the argument that the lower court erred by mistake of facts and by misapprehending the legal principles cannot be a legitimate ground for appeal. Furthermore, even if ex officio examination is conducted, the lower court’s judgment does not err as otherwise alleged in the grounds

Meanwhile, under Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, in this case where Defendant 2 was sentenced to a minor punishment, the argument that the determination of punishment is unreasonable or that there is an error of law in misunderstanding the legal principles as to sentencing does

3. As to Defendant 3’s ground of appeal

The term "election campaign" under Article 58 (1) of the Public Official Election Act refers to all acts that are favorable and necessary for the election or defeat in an election in an election for public office under Article 2 of the same Act and that can be objectively recognized by the intention of promoting the election or defeat in the election. Thus, the mere act of preparing an election campaign falling under the internal and procedural preparation for an election for the future campaign or ordinary political party activities do not fall under such act. However, in determining whether an act constitutes an election campaign, it shall be determined whether the act is accompanied by not only in the name of the act, but also in the form of the act, i.e., the time, place, method, etc. of the act, by comprehensively observing the time, place, method, etc. of the act, and determining whether the act is an act to involve the purpose of promoting the election or defeat of a specific candidate (see Supreme Court Decision 2010Do3935

In addition, "contribution act" provided for in Article 112 (1) of the Public Official Election Act means that one of the parties provides money, valuables, property, etc. to the other party free of charge, and the other party to the contribution act is "a person who has relations with the electorate even if the person in the relevant constituency or a meeting or event of an institution, organization, facility, or electorate or outside the relevant constituency, or a person who has relations with the electorate," and the other party does not ask him/her whether he/she is an election campaign worker or a party member (see, e.g., Supreme Court en banc Decision 2001Do2819, Feb. 21, 2002). In this case, the term "person in the relevant constituency" includes a person who has a domicile or residence within the constituency as well as a person who temporarily stays in the election district, and even if a volunteer, etc. was staying in order to temporarily or temporarily engage in an election campaign in the relevant constituency, he/she constitutes "person in the relevant election district" (see, e.g.

According to the reasoning of the judgment below, after compiling the evidence duly adopted and recognizing facts as stated in its reasoning, the court below found Defendant 3 guilty of all the charges of this case against Defendant 3, since Defendant 3 actively and plannedly performed election campaign to promote the election of a specific candidate, and it constitutes an election campaign under the Public Official Election Act, as well as an act of making a contribution to the person in the relevant constituency, who is a specific candidate's election campaign manager or volunteer in the relevant constituency, who is not a person related to election affairs, etc., but is staying in the relevant constituency, for the specific candidate's election campaign.

Examining the above legal principles and records in light of the above legal principles, we affirm the above selection of evidence, fact-finding and judgment by the court below as legitimate.

The court below did not err by misapprehending the legal principles on election campaign and contribution act under the Public Official Election Act, as alleged in the ground of appeal by Defendant 3.

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)