[공직선거법위반·정치자금법위반][미간행]
[1] Meaning of “persons who have relations with electors” under Article 113(1) of the Public Official Election Act, and whether a City/Do party executive staff member or chairman of the Public Official Election Commission constitutes, as a matter of course, a person who has relations with electors in the Special Metropolitan City, Metropolitan City, or Do where the City/Do party is located (negative)
[2] The person who bears the burden of proving whether the other party to the contribution constitutes the "person who has relations with the elector" under Article 113 (1) of the Public Official Election Act (=the prosecutor)
[1] Article 113(1) of the Public Official Election Act / [2] Article 113(1) of the Public Official Election Act, Article 26 of the Administrative Litigation Act / [Liability for Certification]
[1] Supreme Court Decision 2005Do8250 Decided January 26, 2006, Supreme Court Decision 2006Do7847 Decided February 22, 2007
Defendant 1 and one other
Prosecutor
Attorney Hy Jae-sik
Seoul High Court Decision 2006No2036 delivered on November 9, 2006
The appeal is dismissed.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
Article 113(1) of the Public Official Election Act provides that a candidate (including a person who intends to become a candidate; hereinafter the same shall apply) shall not make a contribution act to a person in the relevant constituency or a person who has relations with the electorate even if he/she is outside the relevant constituency. Here, the term "person who has relations with the elector" means a person who has a certain blood-related relationship with the elector in the relevant constituency, such as his/her family, relatives, family, family, family head, workplace, person who is superior to the elector, meeting of hometown, alumni meeting, alumni meeting, relatives meeting, etc., and is likely to have any direct or indirect influence on the decision-making of the elector (see Supreme Court Decisions 2005Do8250, Jan. 26, 2006; 2006Do7847, Feb. 22, 2007; 2006Do7847, Feb. 22, 2007).
The judgment of the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the electorate and a person who has relations with the electorate.
2. Regarding ground of appeal No. 2
The court below's decision that acquitted the other party of the contribution act of this part of the charges on the ground that there is no proof of such fact is proper, and there is no error of law such as failing to exhaust all necessary deliberations as to the existence of a blood-related or human-related relationship, since the other party to the contribution act has a certain blood-related or human-related relationship with the electorate concerned, and there is a possibility that it may directly or indirectly affect the decision-making of the electorate.
3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Nung-hwan (Presiding Justice)