Law Firm Rate (For Defendant 2)

[Defendant-Appellee] Defendant 1 and 3 others

1. As to Defendant 1’s ground of appeal

A. Articles 230(1), 135, and 62(1) and (2) of the Public Official Election Act, except for cases where allowances, actual expenses, and other benefits are provided pursuant to the same Act, regardless of the pretext such as allowances, actual expenses, compensation for volunteer service, etc., shall be subject to punishment of offering or expressing an intention to offer money, goods, or other benefits, or offering a promise, instruction, solicitation, solicitation, demand, or receipt of such offer in connection with the election campaign. According to Article 135(2) of the Public Official Election Act, allowances and actual expenses may be paid to persons engaged in election affairs only within the scope determined by the National Election Commission. The reason for these provisions is because it is difficult to prevent an excessive election campaign, if benefits are provided to election campaign workers, etc., and election campaign is carried out for the purpose of benefit of election campaign workers (see, e.g., Supreme Court Decision 201Do7514, Jan. 27, 2005).

In light of the contents and purport of the Public Official Election Act, even in cases where the National Election Commission can compensate for allowances or actual expenses related to election campaigns, the types and amount determined by the National Election Commission within the scope that does not impair the fairness of election according to social and economic circumstances shall be applied. It is difficult to view that the legislative purpose and subject matter of regulation are different from the Minimum Wage Act.

B. On the grounds indicated in its reasoning, the lower court rejected all the allegations that Article 59(1)3 and 59(1)5 of the Rules on the Management of Public Official Election deviates from the scope of delegation under Article 135(2) of the Public Official Election Act, which is the mother, and violates the Minimum Wage Act, and Defendant 1 did not have any possibility to expect lawful acts. The lower court upheld the first instance court that convicted Defendant 1 of the facts charged (excluding the portion of innocence) against Defendant 1.

Examining the reasoning of the judgment below in light of the above legal principles, although the reasoning of the judgment below is partially insufficient, the judgment below did not err by misapprehending the legal principles on the principle of statutory reservation, the relationship between the Public Official Election Act and the Minimum Wage Act, the principle of equality, and the possibility

2. As to Defendant 2’s ground of appeal

Article 16 of the Criminal Act provides that a person’s act of misunderstanding that his/her act does not constitute a crime under statutes shall not be punishable only when there are justifiable grounds for misunderstanding. This is generally purported that a crime is not established, but a crime is not punishable if there are justifiable grounds for misunderstanding, recognizing that his/her act is not a crime permitted under statutes in light of his/her special circumstances. “Justifiable grounds” should be determined depending on whether he/she could not be aware of the illegality of his/her act as a result of failing to fulfill his/her intellectual ability even though he/she could have been aware of the illegality of his/her act if he/she had made a serious effort to avoid the illegal possibility of his/her act. The degree of efforts necessary for recognizing illegality should be determined differently depending on the situation of the act, the person’s awareness ability of the offender, and the social group to which the actor belongs (see, e.g., Supreme Court Decision 2014Do1273, Mar. 15, 2017).

The lower court maintained the first instance judgment that there is no justifiable ground for Defendant 2’s mistake because it is difficult to view that Defendant 2 had made a serious effort to avoid illegality due to Defendant 2’s failure to perform his intellectual ability.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court did not err in its judgment by misapprehending the legal doctrine on legal mistake as prescribed in Article 16 of the Criminal Act.

3. Conclusion

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

Justices Park Sang-ok

Justices Noh Jeong-chul

Justices Kim In-bok