2. B

The costs of lawsuit are assessed against the plaintiffs.

On June 4, 2014, the fact that the F candidate recommended by the Defendant from D Political Party (hereinafter referred to as “E Party” on February 13, 2017) was changed to the name of the E Party (hereinafter referred to as “E Party”) during the 6th election of Dong-si local government, which was implemented on June 4, 2014, that the F Party decided as the elected person is significant in this court.

2. The plaintiffs' assertion

The plaintiffs asserted that the election of this case is null and void on the following grounds.

A. The ballot counting machine used in the election of this case constitutes a computer system, which is an integrated system of a ballot box that prints out voting papers and ballot counting, and a control computer that controls it. Thus, its use is limited to a special election pursuant to Article 5(1) of the Addenda of the Public Official Election and Prevention of Unlawful Election Act ( March 16, 1994), and its use is not permitted pursuant to Article 5(1) of the Addenda of the Public Official Election Act. Since the ballot counting machine used in the election of this case does not comply with the procedure regulations such as public relations to voters and consultation with political parties that form negotiating groups in the National Assembly, it cannot be deemed that the election of this case that violates such provisions has completed the valid ballot counting procedure.

B. The main text of Article 178(3) of the Public Official Election Act requires members of the Gu/Si/Gun election commission to sign or affix seals, not signatures and seals, on the ballot-counting slip, is unconstitutional since it does not guarantee the accuracy of the ballot-counting. Thus, Articles 178(1) and 181(2) of the Public Official Election Act do not limit the number of ballot-counting boxes for which the number of ballot-counting witnesses is calculated at the same time, thereby limiting the number of ballot-counting witnesses to a certain size is unconstitutional. In addition, the Defendant’s failure to post the ballot-counting slip at the time of the instant election along with

3. Determination

A. An election lawsuit under Articles 222 and 224 of the Public Official Election Act is a lawsuit for collective action, which violates the provisions relating to election in the series of processes of election, and where it is deemed that the result of the election had influenced the result of the election, all or part of the election is invalidated. This purpose is to legally implement an election and to make a proper decision on the result of the election. Thus, it constitutes a lawsuit for public interest under Article 3 subparag. 3 of the Administrative Litigation Act (i.e., a lawsuit filed by the State or a public organization to seek correction without direct legal interests and interests (see Supreme Court Decisions 4293No14, Apr. 11, 1961; 2003No26, May 31, 2004).

Meanwhile, the exercise of the right to trial may be limited by the principle of trust and good faith in order to protect the other party and secure judicial functions. In a case where an election lawsuit is instituted on the ground that the method of executing specific election affairs by an election commission is illegal, the same contents of the election lawsuit cannot be accepted by law after the court has already rendered a clear judgment that the method of executing such specific election affairs is not illegal, and thus, it would substantially interfere with the duties of the election commission, which is the other party, and furthermore, it would result in unnecessary use of judicial resources. Thus, such a lawsuit shall not be permitted as it abuse of the right of lawsuit in violation of the principle of trust and good faith, barring any special circumstance (see, e.g., Supreme Court Decisions 98Da275, May 28, 199; 2016Da64, Nov. 24, 2016).

B. Article 178(4) of the Act on the Election of Public Officials and the Prevention of Unlawful Election, which was enacted on March 16, 1994, delegates to the National Election Commission the ballot-counting procedure and the form of ballot-counting table and other necessary matters, and Article 5(1) of the Addenda of the Act (amended by Act No. 463, Mar. 16, 1994) of the Act provides that a special election which is implemented after the enforcement of this Act may carry out ballot-counting by means of computer systems. In this case, the National Election Commission decided on the special election which is to carry out ballot-counting by means of

After that, Article 99(3) of the former Rules on the Management of Public Officials Election, which was enacted on May 28, 1994, "the Gu/Si/Gun Committee may use a coefficient or computer system when calculating or checking ballot papers in the ballot counting." Article 99(3) of the former Rules on the Management of Public Officials Election, which was amended on March 21, 2002, provides that "the Gu/Si/Gun Committee may divide ballot papers for ballot counting by kind, invalidation, or candidate, or use a machine or computer system necessary for calculating ballot papers for ballot counting."

However, the Public Official Election Act amended by Act No. 12267, Jan. 17, 2014; Article 178(2) of the former Rules on the Management of Public Officials Election; and Article 99(3) of the former Rules on the Management of Public Officials Election may divide ballot papers into one by kind, invalidation, or candidate (referring to a political party in the case of proportional representative National Assembly members election and proportional representative election of proportional representative National Assembly members and proportional representative election of proportional representative local council members) or use a mechanical device or computer system necessary for calculation. The new provision was newly established; Article 99(3) of the former Rules on the Management of Public Officials Election was deleted on January 17, 2014.

On the other hand, Article 278 of the Public Official Election Act provides that "the National Election Commission shall, when it intends to conduct the management of voting and ballot counting by computer system by computerization, publicize it by means of the distribution of advice, the advertisement using press media and other methods so that electors can know it, and the decision on whether to implement it shall be made in consultation with the political party that forms a negotiating group in the National Assembly: Provided, That this shall not apply to the identification device and ballot paper issuer pursuant to Articles 158 (2) and (3) and 218-19 (1) and (2) and the use of machine or computer system pursuant to Article 178 (2).

C. The Supreme Court rejected the claim that the ballot counting by the electronic ballot counting machine violates the Public Official Election Act, on the ground that the ballot counting by the electronic ballot counting machine violates Article 99(3) of the former Rules on the Management of Public Officials Election enacted by delegation under Article 178(4) of the Public Official Election Act, and it is merely a machine that classifys the ballot papers by candidate or classify them as non-classified ballot papers by recognizing them as image to assist the confirmation and examination by the ballot counting machine, and that the ballot counting by the electronic ballot counting machine cannot be deemed as a "counting by the computer system" under Article 278(3) of the Public Official Election Act, on the ground that it cannot be deemed that the ballot counting by the electronic ballot counting machine violates the Public Official Election Act (Supreme Court Decision 2003Da2366, May 31, 2004).

As such, the Supreme Court made a judgment on the following facts: (a) distinguishing voters from voters to assist in ballot counting affairs under the Public Official Election Act; or (b) using machinery or computer systems necessary for calculating voters, which is a lawful ballot counting method based on Article 178(4) of the Public Official Election Act and Article 99(3) of the former Rules on the Management of Public Officials Election (amended by National Election Commission Regulations No. 400, Jan. 17, 2014) before January 17, 2014, and thus, cannot be a ground for invalidation of election, such as violation of Article 5 of the Addenda to the Public Official Election and the Prevention of Unlawful Election Act (amended by Act No. 400, Mar. 16, 1994). Furthermore, such a legal principle is clear that it is applied to the same period after January 17, 2014, not by the National Election Commission Regulations, but by the National Election Commission Regulations.

D. Nevertheless, the Plaintiffs asserted the invalidity of the instant election because the instant ballot counting procedure by the electronic ballot counting machine violates Article 5 of the Addenda to the Election of Public Officials and the Prevention of Unlawful Election Act ( March 16, 1994). Moreover, a lawsuit seeking invalidation of an election is filed several times prior to the instant case, even before the instant case. All these lawsuits are repeatedly filed the same assertion as to the method of executing specific election affairs, which clearly revealed that the election cannot be a ground for invalidation explicitly by the Supreme Court, and are asserting that the election is null and void. Therefore, it is difficult to view that there is a need to repeatedly under the name of the court, and rather, it would only lead to the outcome that interferes with the affairs of the election commission, which is the other party to the lawsuit, and unnecessary consumption of judicial resources.

If a lawsuit for invalidation of an election is filed by the elector of the relevant election, it is difficult to deem that a lawsuit for invalidation of an election is brought to seek rectification of an illegality in the election process, regardless of his/her own legal interest, even if it is filed by him/her, and thus, is consistent with the institutional intent of the lawsuit for invalidation of an election, since it is apparent that there is no reason to do so.

In addition, considering the nature of the lawsuit for invalidation of election as a civil suit, it is difficult to view that the evaluation should be different solely on the basis that the plaintiffs who filed the lawsuit are not the same person.

Furthermore, it is clear that there is no ground to support the unconstitutionality of the Public Official Election Act provisions on the ballot counting procedure or the defendant's violation of the provisions on the ballot counting procedure.

Therefore, the instant lawsuit may cause interference with the duties of the election commission, which is the other party, and unnecessary consumption of judicial resources, and it is not permissible for the State or a public organization to exercise an influence right, which is not consistent with the purpose of a civil lawsuit permissible to seek correction when the State or a public organization violated laws. The instant lawsuit is unlawful without the need to determine on its merits.

4. Conclusion

Therefore, all of the instant lawsuits are dismissed, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jong-hee

Justices Park Sang-ok