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

1. As to Defendant 1’s ground of appeal

A. Articles 230(1), 135, 62(1), and 62(2) of the Public Official Election Act, except where allowances, actual expenses, and other benefits are provided pursuant to the same Act, anyone is subject to the punishment of offering or expressing an intention to offer money, goods, or other benefits in connection with the election campaign, or offering a promise, instruction, solicitation, mediation, demand, or receipt of such offer. According to Article 135(2) of the Public Official Election Act, the types and amount of 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 that it is difficult to prevent the right to vote through an excessive election campaign if benefits are provided to election campaign workers, and the election campaign is carried out for the benefit of election campaign workers, and it is difficult to ultimately hold an election campaign (see, e.g., Supreme Court Decision 2005Do1751, Jul. 14, 2005).

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

B. Based on its stated 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, which deviates from the scope of delegation under Article 135(2) of the Public Official Election Act, which is the mother, and violated the Minimum Wage Act, and Defendant 1 did not have any possibility of expectation of lawful acts, and maintained the first instance court that convicted Defendant 1 of the facts charged (excluding the part of innocence in the grounds of appeal) against Defendant 1.

Examining the reasoning of the judgment below in light of the above legal principles, although some of the reasoning of the judgment below is 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

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 is a justifiable ground for misunderstanding. This generally purports that a crime is not permitted under statutes, in light of his/her special circumstances, and that it does not be punishable if there is a justifiable reason for such misunderstanding. In such cases, “justifiable reason” is the opportunity for an actor to be aware of illegality of his/her act, even though he/she was unable to do so even though he/she failed to perform his/her duty despite the possibility of being aware of illegality. The degree of efforts necessary to recognize illegality should be determined differently depending on the situation of specific acts, the offender’s awareness ability, and the social group to which the offender belongs (see, e.g., Supreme Court Decision 2014Do12773, Mar. 15, 2017).

The court below maintained the judgment of the court of first instance that there is no justifiable ground for Defendant 2’s misunderstanding because it is difficult to view that Defendant 2 had made a serious effort to avoid illegality with Defendant 2’s 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 as to errors in law under 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 Noh Jeong-hee (Presiding Justice)