[2] Whether the proviso of Article 100(1) of the former Rules on the Management of Public Officials Election is valid (affirmative)

[3] Where a private person of the chairman of the competent voting district election commission is deemed to be valid a ballot paper.

[4] The validity of the ballot paper on which an 12th presidential election, other than the balloting aid in the national local simultaneous elections, was put up with the balloting aid on which an “sweet” mark is affixed

[2] According to the direct relation provisions on the election of public officials and the prevention of election fraud Act, a ballot paper without a private seal of the chairperson of the voting district election commission, in principle, cannot be deemed a regular ballot paper. However, Article 180 (2) of the same Act provides that "in determining the validity of a voting, the elector's intent shall be respected." Thus, even if it is a ballot paper with a private seal of the chairperson of the voting district election commission omitted, if it is delivered by other data and it is clearly confirmed that the elector has cast a vote in accordance with legitimate voting procedures, it is reasonable to treat it as valid if it is understood only in terms of respecting the elector's intent. The proviso to Article 100 (1) of the former Rules on the Management of Public Officials Election (amended by National Election Commission Regulations No. 129 of Dec. 30, 195) of the same Act (amended by the National Election Commission Regulations No. 129 of Dec. 30, 199) provides for the interpretation and application standards of the same Act as to whether it is a formal requirement or respect for the elector's intent.

[3] According to Article 100 (1) of the former Rules on the Management of Public Officials Election, even if a ballot paper with a private seal of the chairman of the voting district election commission omitted, or if the reason for omitting the private seal is not specified in the voting record even if the reason for omitting the private seal is not specified in the voting record, it shall be regarded as a regular ballot paper unless there is any other reason for invalidation. Meanwhile, in light of the purport of Article 157 (2) of the Act on the Election of Public Officials and the proviso of Article 100 (1) of the former Rules on the Management of Public Officials Election, and Article 100 (1) of the former Rules on the Management of Public Officials Election, if a private person gives up the ballot paper, if the party-recommended member gives up the ballot paper and has the same effect as that of the chairman of the voting district election commission, it shall be treated as a valid ballot paper.

[4] Three copies of the ballot papers on which an absentee polling station mark "" is affixed using an absentee ballot box, are all put in the balloting box at the time of the 14th presidential election in 192. If the above ballot paper is sent to the elector listed on the electoral register for reported absentees by the chairman of the election commission, and if the absentee ballot paper was returned after being put in the balloting booth at the absentee polling station for reported absentees by the chairman of the election commission, the above ballot paper is presumed to have changed because it does not have any change in the balloting method at the absentee polling station, and it is presumed that the absentee elector used the balloting box at the time of the presidential election as at the time of the presidential election, and made a mark by using it. Therefore, even if the above ballot paper is not a balloting aid in accordance with the method of entry under the Election of Public Officials and Prevention of Unlawful Election Act, it shall be deemed that the election commission’s side keeps it in the balloting booth, and in respect of the elector’s intention, it shall not constitute the grounds for invalidation as provided in Article 179(1)7 of the same Act.

1. On the first and second grounds for appeal

A. Article 179(1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election (referring to the Act enforced at the time of the national local simultaneous elections, June 27, 1995; hereinafter the same) only provides that "any of the following votes shall be null and void: 1. does not use a regular ballot paper; 1. does not have any clear provision on which a certain provision of the Public Official Election Act does not regard a certain ballot paper as a regular ballot paper; therefore, the definition of a regular ballot paper shall be examined by taking into account various relevant provisions of the Public Official Election Act.

The Public Official Election Act provides for the provisions of Articles 150, 151, 152, and 157 with respect to the preparation of ballot papers and the procedures for their issuance. In full view of these relevant provisions, the term "gold papers for the Regulations" as provided in subparagraph 1 of Article 179 of the Public Official Election Act, in principle, shall be prepared and sealed by the competent Gu/Si/Gun election commission (hereinafter referred to as the "Gu/Si/Gun commission") in accordance with the contents under Article 150 of the Public Official Election Act and the standards under Article 151 (1) and (7) of the Public Official Election Act and signed and sealed by the official seal of the Gu/Si/Gun commission (in case of the simultaneous elections under Article 211 (4) of the Public Official Election Act, the number of party representatives shall be fixed and sealed by the National Election Commission Regulations (hereinafter referred to as the "Public Official Election Act"), but the chairperson shall not request the voting district commission to keep the ballot papers for the simultaneous elections after being delegated to the voting district commission (hereinafter referred to the National Election Commission Regulations).

Nevertheless, Article 100(1) of the Regulations on the Management of Public Officials Election (amended by the National Election Commission Regulations No. 129 of December 30, 195; hereinafter the same shall apply) provides that the ballot paper with which the private seal of the chairperson of the voting district committee is omitted shall not be deemed a regular ballot paper, and thus, in conformity with the purpose of the Public Official Election Act, the proviso provides that "However, even if the ballot paper with the private seal of the chairperson of the voting district committee is omitted, if the reason is stated in the voting record or the private seal of the chairperson of the voting district committee is affixed on the ballot paper, the office member of the Si/Gun/Gu committee, the party representative, and the seal of the party-recommended party-recommended member are written by the voting district preparation, management record or voting record and seal imprint register, etc., and if it is deemed that the ballot paper is a ballot paper that is issued to the elector, it shall be reviewed whether the provisions of the proviso above are consistent with the relevant provisions of the Public Official Election Act."

However, since Article 114 (6) of the Constitution of the Republic of Korea provides that "the National Election Commission may establish regulations on election management, referendum management, or political party affairs within the scope of statutes," the National Election Commission does not necessarily require individual delegation of the relevant statutes, such as the Public Official Election Act, but can establish regulations on direct election management to the extent that it does not conflict with the laws and regulations, even if there is no special delegation of the relevant statutes, and further, the Central Election Commission may establish an interpretation and supplementary provision that specifies the concept, etc. of the provisions of the Public Official Election Act within the extent that it considers that there is doubt as to the interpretation and application of the provisions of the relevant statutes concerning election management, such as the Public Official Election Act, in light of the overall interpretation of the Public Official Election Act.

Therefore, according to the direct relations provisions on the preparation of ballot papers under the Public Official Election Act, in principle, it seems that the ballot papers without the private seal of the chairperson of the voting district committee cannot be deemed regular ballot papers. Meanwhile, Article 180(2) of the Public Official Election Act provides that "the elector's intent shall be respected in determining the validity of the voting." Thus, even if the ballot papers are omitted, as in this case, where other data are delivered to the voting district committee committee and where it is clearly confirmed that the elector has made the voting by legitimate voting procedures, it is appropriate to treat them as valid if they are understood only in the respect of the elector's intention. The proviso of Article 100(1) of the Public Official Election Act provides that the concept of the regular ballot paper under Article 179(1) of the Public Official Election Act does not conflict with the purport of the Public Official Election Act, and thus, it cannot be deemed reasonable or unreasonable as the provision in the proviso of Article 100(1) of the Public Official Election Act does not conflict with the purpose of the Public Official Election Act.

B. According to Article 100(1) of the Rules on Election of Public Officials, even if a ballot paper with a private seal of the chairman of the voting district committee’s private seal omitted, or if the reason for omitting the private seal is not specified in the voting record, if there is no other reason for invalidation, it shall be deemed a regular ballot paper unless there is any other reason for invalidation. Meanwhile, in light of the purport of Article 157(2) of the Public Official Election Act and the proviso of Article 100(1) of the Rules on Election of Public Officials, in the case of a ballot paper with a private seal of the chairman of the voting district committee’s private seal and a private seal of the chairman of the voting district’s party-recommended member (in the national simultaneous elections of this case, a private seal of the chairman of the voting district committee’s private seal is omitted, even if the reason for omitting the private seal is not specified in the voting record, if the party-recommended member waives his/her private seal, and if so, it shall be deemed that the voting district’s private seal has the same effect as the voting district’s member’s private seal.

(c) According to the reasoning of the judgment below and records, six members of the voting district including the plaintiff (No. 1), the Intervenor (No. 2; hereinafter the same shall apply) and the non-party (No. 5) were posted at the 1st election district of Gangdong-gu 20 voting district, and the above non-party were added up with 1,70 votes, 2,401 votes, and the non-party (the non-party) were decided as the elected party-recommended party-recommended party-recommended party-recommended party-recommended party-recommended party-recommended party-recommended party-recommended party-recommended party's ballot paper management committee's ballot papers were all posted at the 17th election district-recommended party-recommended party-recommended party-recommended party-recommended party-recommended party's 1,767,72, and the non-party-party-recommended party-recommended party's 1,402, and the non-party-party-recommended party-recommended party-recommended party's ballot papers were removed from the 19th election commission.

2. On the third ground for appeal

According to the reasoning of the judgment below, the court below found, based on the evidence adopted in its judgment, that all three ballot papers were put on an absentee ballot box using an absentee ballot ticket with the balloting aid "" affixed, and the balloting aid was used at the top of the 14th presidential election at the time of the 1992 presidential election. The above ballot paper is sent to the elector listed on the electoral register for reported absentees by the defendant, and there was no special doubt as to the absentee ballot paper returned after being put on the balloting booth at the absentee polling station. According to the above facts, the above ballot paper is presumed to have been used at the time of the presidential election because it is not known that the balloting aid changed in the balloting method at the absentee polling station, and it is presumed that the absentee elector used the balloting aid at the time of the presidential election and put it on it by using it. Therefore, even if the above balloting aid is not a balloting aid pursuant to the statutory provision, it is deemed that the election commission's side has kept it in the balloting booth, and it is not a "an absentee ballot ticket" as provided in Article 17 (17) of the Public Official Election Act.

In light of the records, we affirm the judgment of the court below as just and there is no error in the interpretation and application of the main sentence of Article 159 and Article 179 (1) 7 of the Public Official Election Act or the fact-finding without evidence in violation of the rules of evidence, as otherwise alleged in the ground of appeal. The ground of appeal pointing this out is not acceptable.

3. Therefore, the appeal is dismissed and the costs of appeal are assessed against the defendant-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)