[2] The meaning of "election" in the crime of interference with the freedom of election under Article 237 (1) of the Public Official Election Act and the subjective elements of the crime

[3] The case holding that violence was committed against the elector in relation to election, in case where the Do council member-to-be was assaulted by the elector who refused to request an election campaign

[2] The term "election" as provided by Article 237 (1) of the Public Official Election Act refers to "a motive for matters concerning an election, such as voting, election campaign, or election, in a specific election". An act related to an election does not necessarily require a specific candidate to be an act for the purpose of success or defeat in the election, and is not limited to an act within the election campaign period, and is also included in an act before or after the election, or after the completion of the election, and it is sufficient to recognize that the subjective constituent elements of the crime of interference with the freedom of election under the above provision include the subjective constituent elements of the crime of interference with the election, along with the awareness of the object and mode of the act, as well as the awareness of "election"

[3] The case holding that violence was committed against the elector in relation to the election, in case where the Do council member-to-be was assaulted by the elector who refused to request an election campaign

Preliminary election campaign refers to any act necessary or advantageous to obtain a vote for the purpose of election of a specific candidate for the purpose of obtaining or making another person obtain a vote for the purpose of election, or any active, planned act that can objectively be objectively recognized as being intended to promote the election or defeat in the election against an elector among all acts necessary and unfavorable for the purpose of defeat in the election of a specific candidate, and an ordinary, ordinary, and social act is excluded here, and whether an act is ordinary, ordinary, or social act shall be determined in light of social norms, by taking into account all the circumstances, such as the social status of the actor and the other party, relationship between him and the other party, motive, method, contents, and attitude (see Supreme Court Decision 2005Do2014, Sept. 9, 2005, etc.).

The court below, after compiling the adopted evidence, found facts as stated in the judgment, and determined that the defendant's act of speaking to the non-indicted 1 and the non-indicted 2 "do not help but help in the election in the past" was an act necessary and favorable to obtain a vote for the purpose of election of the defendant and constitutes an advance election campaign, which is an act in favor of the non-indicted 1 and the non-indicted 2, taking into account the time, place, social status of the defendant and the other party, relationship between them, and motive, contents, etc. In light of the above legal principles and records, the court below's fact-finding and decision are just and acceptable, and there is no illegality of misunderstanding the legal principles of the crime of violating the Public Official Election Act under the prior election campaign.

2. As to the prosecutor's appeal

A. Summary of the facts charged regarding the violation of the Public Official Election Act by the elector’s assault

The summary of this part of the facts charged is as follows: “The defendant is a member of Jeju-gun, Jeju-gun, who is the Jeju-do Council member of the 4th local election that will be held on May 31, 2006 at the time of the instant case, and the elector (including a person eligible to be recorded in the electoral register before the preparation of the electoral register) may not assault the elector with respect to the election. At around December 23:00, 2005, at the 50 marbs, Sung-gun, Sung-gun, Chungcheongnam-gun, Chungcheongnam-do, Sung-do, Sung-do, Sung-do, Sung-do, Sung-do, Sung-do, the elector in the said constituency, the reason that the victim Nonindicted 2 (50) would refuse the Defendant’s election campaign and the request for support, and the face of the above Nonindicted 2 (including the person eligible to be recorded in the electoral register) was taken once more than once and more than once more than once more than once and more than once more than once more than after being pusheded by assaulting it.”

B. The judgment of the court below

In light of the legislative purport of Article 237(1)1 of the Public Official Election Act (hereinafter “Act”), the lower court held that, inasmuch as all assault and intimidation against electors, etc. are uniformly deemed to constitute a crime of interference with the freedom of election that is punishable by the above provision, and even if it is not necessarily necessary to constitute an act of obstructing election or defeat in election, it is reasonable to limit it to be established only with the intention of assault and threat of voters at least to participate in the election process or free decision-making on election under the intention to restrict election.” According to the victim Nonindicted 2’s statement as to the developments of assault in this case, the lower court determined that “the victim was unable to engage in an election campaign for the candidate of the Defendant from 202 local election,” and deemed that “the victim was not entitled to participate in the election of the Defendant as his member of the Gun, and thus, the victim could not be deemed to have interfered with or interfere with the election of the Defendant at the time of this case’s request by the victim.”

C. The judgment of this Court

However, we cannot accept the above decision of the court below for the following reasons.

The term "election" as provided in Article 237 (1) of the Act refers to "a motive for matters concerning an election, such as voting, election campaign, or election, in a specific election," and an act related to an election does not necessarily require a specific candidate to be an act for the purpose of winning or defeating the election, and is not limited to an act within the election campaign period, and also includes an act before that period or after the completion of the investment or ballot counting. In addition, the subjective constituent elements of the crime of interference with the freedom of election as provided in Article 237 (1) of the Act include not only the object and form of the act, but also the perception of "election" along with the awareness of the object and mode of the act, are sufficient.

According to the records, although the defendant requested several times at the time of the instant case to help the victim be elected in the local election which was held by the victim at the time of the instant case, the victim's refusal upon the request of the defendant was made by the victim so that the victim could be elected. In light of the above legal principles, the assault of the defendant by the above reasons cannot be said to have been committed in relation to the election.

Nevertheless, the court below found the defendant not guilty of this part of the facts charged on the ground that in order to constitute a crime of interference with the freedom of election under Article 237 (1) 1 of the Act, violence against the elector shall be committed under the intention of infringing or restricting the right to participate in the elector's election process or the free decision-making on election," and on the erroneous premise of its stated reasoning, the defendant in this case merely committed violence with the victim's speech and behavior at a moment, and did not have an intent to infringe or limit the victim's right to participate or decision-making freedom of election. Thus, the court below erred in the misapprehension of legal principles as to the elements for establishing a crime of interference with the freedom of election, and such illegality affected the judgment.

3. Scope of reversal

Therefore, the part of the judgment of the court below which is not guilty should be reversed, and the part of the judgment of the court below which is the relation of injury with the above not guilty and the part of the crime of violation of the Public Official Election Act through prior election campaign which is the relation of concurrent crimes under the former part of Article 37 of the Criminal Act shall also be reversed. Thus, the judgment of the court below

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)