[2] Whether the primary election for the election of a candidate for a political party is included in the scope of “election” prohibited by Article 65(2) of the State Public Officials Act (affirmative), and whether a state public official, beyond soliciting another person to join or not to join a political party or other political organization, conducts the above acts in a systematic and planned manner or violates the above provisions by performing the above acts (negative)

[3] Whether a state public official who is prohibited from political activities may carry out an intra-party competition campaign falling under the “election” (negative), and whether its form is the same as that of the intra-party competition in accordance with public opinion poll methods (affirmative), and whether a state public official who carried out an intra-party competition campaign prior to the period of the intra-party competition campaign constitutes a violation

[4] In a case where it is not clear whether the person who made a contribution is the person who made a contribution under the Public Official Election Act, such as the difference between the contributor and the person who made a contribution, the method to specify the person who made the contribution and the case where the above act of contribution can be justified as it does not violate the social rules

[5] Scope of the act of receiving and receiving money, etc. subject to the punishment of the main sentence of Article 45(1) of the Political Funds Act / Whether the crime of receiving and receiving political funds has been committed, and whether the actual use of the money for political activities has an impact on the establishment of crimes

[2] Article 65(1) of the State Public Officials Act provides that “A public official shall not participate in, or join in, a political party or other political organization.” Article 65(2) provides that “No public official shall, in an election, engage in any of the following activities to support or oppose a specific political party or person.” Article 65(1)5 of the State Public Officials Act prohibits a public official from soliciting another person to join, or not to join, a political party or other political organization.” Although the Public Official Election Act does not have a separate definition provision on “election”, the Public Official Election Act, amended by Act No. 7681 on August 4, 2005, has a provision on the intraparty competition for recommending a candidate for a political party by newly establishing Chapter 6-2. Meanwhile, the Local Public Officials Act, like the State Public Officials Act, prohibits a public official from joining, or soliciting another person to join, a political party or other political organization.”

In light of the above structure and contents of the State Public Officials Act, the Local Public Officials Act, the Public Official Election Act, etc., and the purport of the State Public Officials Act declaring the political neutrality of public officials, the primary election for selecting a candidate for a political party also includes the scope of “election” prohibited by Article 65(2) of the State Public Officials Act, and it does not violate the above provisions only when a state public official performs such act systematically and systematically beyond inducing another person to join or not to join a political party or other political organization. It does not necessarily mean that the status of a public official should be used while performing the above act

[3] Article 57-3 (1) of the Public Official Election Act limits the method of conducting an intra-party competition campaign by providing that "no party may conduct an intra-party competition campaign by any means other than those falling under any of the following subparagraphs with respect to the intra-party competition for which the right to vote is granted to any party member and any non-party member." The main sentence of Article 57-6 (1) of the Public Official Election Act provides that "any person who is prohibited from conducting an election campaign pursuant to Article 60 (1) shall not conduct an intra-party competition campaign in accordance with Article 60 (1)." Article 60 (1) 4 of the Public Official Election Act provides that "National public officials provided for in Article 2 of the State Public Officials Election Act and local public officials provided for in Article 2 of the Local Public Officials Act are prohibited from conducting an election campaign in principle by providing for the intra-party competition for the recommendation of a political party." Meanwhile, considering the above provisions of Chapter 6-2 of the Public Official Election Act, national public officials prohibited from conducting an intra-party competition campaign cannot be deemed to fall under the method of the intra competition campaign:

[4] The act of donation under Article 113(1) of the Public Official Election Act provides money and other valuables with the intention of devolving the effect of donation to a candidate or to a person who intends to be a candidate. The act of donation is a common example, but it is not limited to the actual contributor of money and other valuables, etc. In addition, in a case where it is not certain for either party to whom money and other valuables are contributed, as the contributor does not coincide or is engaged in the act of donation in external form, it is not clear that the contributor is the contributor. In addition, in full view of all the circumstances, such as the motive or purpose of the contribution, the process of the act of donation, the relationship between the donor and the contributor, and the person who received the contribution, it is necessary to specify

In a case where the above contribution act is considered to be within the scope of social order naturally formed as a kind of formal or official act or ordinary political party activities, the illegality may be avoided as it does not violate social rules, but it requires careful attention to recognizing illegality for such reason.

[5] The main text of Article 45(1) of the Political Funds Act provides that "any person who contributes or receives political funds by means not provided for in this Act (referring to a person who commits the relevant violation as a member of a political party, supporters' association, corporation, or other organization; hereinafter the same shall apply) shall be punished by imprisonment for not more than five years or by a fine not exceeding 10 million won." Article 3 subparagraph 1(f) of the same Act provides that "any person who intends to be a candidate under the Public Official Election Act (including a Preparatory Committee for Central Party Formation), any person who intends to be a candidate under the Public Official Election Act, any person who is elected, any supporters' association, any executive officer or employee of a political party, or any other person who is engaged in any political activity, shall be punished as political funds." The above provision does not prohibit and punish any person engaged in any political activity from receiving and receiving all money, etc. provided for political activities, but shall be punished only by the act of receiving and receiving money, etc. objectively anticipated expenses for political activities.

1. Probative value

A. Judgment on the grounds of appeal by the prosecutor

(1) Evidence collected by Defendant 2 from the mobile phone equipment voluntarily submitted on February 26, 2016

The court below determined that the above evidence cannot be used as evidence except for the contribution act listed in No. 1 of the annexed Table 8 of the crime sight table of the court below.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine on admissibility of evidence, contrary to what is alleged in the

(2) Of the evidence collected from the cellular phone from April 14, 2016, with the warrant of search and seizure, the CD and the transcript (Evidence No. 515, 516)

In order to use as evidence text information stored in a computer disc or other similar information storage device (hereinafter referred to as “information storage device”), which is a seized object, or a printed document (hereinafter referred to as “printed document”), the identity of the substance stored in the original of the information storage device and the printed document ought to be recognized. To this end, the circumstance should be acknowledged that the original of the information storage device was not changed from seizure to output of documents. In particular, in the case of documents printed from a medium that “Hcar” or “HAS” on behalf of the original of the information storage device, the identity of data should be recognized between the original and the “Hcar” or “SAS” medium. In addition, in the case of documents printed from the original of the information storage device, the identity of data should be recognized between the original and the original of the information storage device and the electronic medium that “Hcar” or “SAS”. In addition, the technical capability and accuracy of the operator at each stage of the computer’s mechanical accuracy, program reliability, input, processing, and output using the information processing device (see, etc.).

The court below determined that the above evidence cannot be used as evidence except for the contribution act listed in No. 1 of the annexed Table 8 of the crime sight table of the court below.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine on admissibility of evidence without exhaust all necessary deliberations as alleged in the grounds of appeal.

(3) Out of the voice files voluntarily submitted by Defendant 2, the expanded person’s “www” file

The lower court determined that the foregoing evidence cannot be used as evidence on the ground that it was not proven that it was identical to the original and the integrity was recognized.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on admissibility of evidence.

B. Judgment on Defendant 1’s grounds of appeal

(1) Evidence extracted from the third siren and CCTV video files (Evidence Nos. 62, 480)

The lower court determined that the foregoing evidence can be used as evidence for the following reasons.

Although an error occurred in the process of creating duplicates during the second sirening process conducted by the Chungcheong North Korean Provincial Police Agency, it is difficult to view that a storage device related to evidence extracted from the third sirens has been permanently damaged. Moreover, CCTV video files cannot be confirmed as being identical to the original because they did not exist, but they were copied from the originals, and were not forged or altered in the course of duplication.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on admissibility of evidence.

(2) The so-called “second evidence” such as the statement of witness by Defendant 2 and the protocol of examination of suspect (Evidence No. 428, 504)

In finally determining whether to grant admissibility of secondary evidence, the court should first consider all circumstances related to the collection of secondary evidence, namely, the purport of the procedural provision and its content and degree of violation, specific course and possibility of avoidance, relation between the right to protect the procedural provision or legal interests, the nature of the right to protect, degree of infringement, degree of causation between the procedural violation and the collection of evidence, and awareness and intent of the investigative agency, etc. In addition, the court should consider all additional circumstances in the course of collecting secondary evidence based on the primary evidence as a whole and comprehensively based on specific cases (see Supreme Court Decision 2012Do13607, Mar. 28, 2013, etc.).

The lower court determined that the foregoing evidence was separated from illegally collected evidence and that it could be used as evidence. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine on admissibility of evidence, contrary to what

(3) Whether the examination procedure was violated

Defendant 1 asserts that the lower court did not examine the CCTV video files (Evidence Nos. 62 and 480).

Except where there is an obvious clerical error in the protocol, the document recorded in the protocol as a litigation procedure on the court date shall be proved only by the protocol, and its probative value is absolute and is not allowed to be proved against materials other than the protocol (see Supreme Court Decisions 98Do2890, Dec. 22, 1998; 2005Do6557, Dec. 22, 2005; 2009Do6074, Sept. 10, 2009, etc.).

In this case, there is no evidence to see that there is an obvious clerical error in the evidence list, which is part of the trial records of the first instance court, so the argument in the grounds of appeal disputing the contents of the trial records is not acceptable

2. Violation of the Public Official Election Act by Defendants 1 and 2, and violation of the State Public Officials Act due to the solicitation of application forms for joining;

A. Judgment on Defendant 1’s grounds of appeal

(1) Penal provisions shall be strictly interpreted and applied in accordance with the language and text, and they shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, within the possible scope of the language and text, a systematic and logical interpretation that clearly expresses the logical meaning of the language and text in accordance with the systematic relationship that takes into account the legislative purpose and purpose of the pertinent laws and regulations is for the most adjacent interpretation to the essential contents of the relevant provisions, and is in line with the principle of no punishment without law (see, e.g., Supreme Court Decisions 2002Do2363, Jan. 10, 2003; 2007Do2162, Jun. 14, 2007).

(2) Article 65(1) of the State Public Officials Act provides that “A public official shall not participate in, or join in, a political party or other political organization.” Article 65(2) provides that “No public official shall, in an election, engage in any of the following conduct to support or oppose a specific political party or person.” Article 65(1)5 of the State Public Officials Act prohibits a public official from soliciting another person to join, or not to join, a political party or other political organization.” Although the Public Official Election Act does not have a separate definition provision on “election”, the Public Official Election Act, amended by Act No. 7681 on August 4, 2005, has a provision on the intraparty competition for recommending a candidate for a political party by newly establishing Chapter 6-2. Meanwhile, the Local Public Officials Act, like the State Public Officials Act, prohibits a public official from joining, or soliciting another person to join, a political party or other political organization.”

In light of the above structure and contents of the State Public Officials Act, the Local Public Officials Act, the Public Official Election Act, etc., and the purport of the State Public Officials Act declaring the political neutrality of public officials, the primary election for selecting a candidate for a political party also includes the scope of “election” prohibited by Article 65(2) of the State Public Officials Act, and it does not violate the above provisions only when a state public official performs such act systematically and systematically beyond inducing another person to join or not to join a political party or other political organization. It does not necessarily mean that the status of a public official should be used while performing the above act

(3) Article 57-3(1) of the Public Official Election Act limits the method of an intra-party competition campaign by providing that “No competition campaign shall be conducted in any way other than that falling under any of the following subparagraphs with respect to the intra-party competition for which a political party grants the right to vote to a person who is not a party member and a party member.” The main sentence of Article 57-6(1) of the Public Official Election Act provides that “any person who is prohibited from conducting an election campaign pursuant to Article 60(1) shall not conduct an intra-party competition campaign.” Article 60(1)4 of the Public Official Election Act provides that “National Public Officials provided for in Article 2 of the State Public Officials Act and local public officials provided for in Article 2 of the Local Public Officials Act are prohibited in principle from conducting an election campaign.” Meanwhile, considering the above provisions of Chapter 6-2 of the Public Official Election Act, national public officials prohibited from conducting an intra-party competition campaign cannot be deemed to fall under the “party competition campaign” and the method of conducting the intraparty competition campaign cannot be deemed to fall under the form.

(4) The lower court convicted Defendant 1 of the act of recruiting 37 party members in collusion with Defendant 2, in order to prepare for the intraparty competition for the △△△△ Party Party in the 20th National Assembly election for the 20th National Assembly member.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the State Public Officials Act, the Public Official Election Act, and the joint principal offender

B. Judgment on the grounds of appeal by the prosecutor

The lower court found Defendant 1 and Defendant 2 not guilty on the ground that, among 104 party members recruited by Defendant 1 and Defendant 2, he knew to them that Defendant 1 was intended to support the 67 party members in the intra-party competition, or that he did not prove that he knew of such circumstances.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. Violation of the Public Official Election Act by Defendant 1 and Defendant 2 due to the act of contribution listed in the annexed list 1 of the judgment below

(1) The act of contribution under Article 113(1) of the Public Official Election Act provides money and other valuables, etc. with the intention of devolving the effect of contribution on a candidate or a person who intends to be a candidate. The act of contribution, which is the subject of evaluation as a "contribution", is a common example, but it is not limited to the actual contributor, such as money and other valuables. In addition, in a case where it is unclear that one party is a contributed person because it does not coincide with the contributor and the contributed person or is involved in the act of contribution in an external appearance, it is not clear that the contribution person is the contributed person, taking into account all the circumstances such as the motive or purpose of contribution, the process of the act of contribution, the relationship between the donor and the contributed person, and the person who received the contribution (see Supreme Court Decision 2006Do9043, Mar. 30, 2007).

(2) In a case where the above act of donation is considered to be within the scope of social order naturally formed as a kind of courtesy or official act or ordinary political party activities, and thus, its illegality may be avoided as it does not violate the social rules, but it needs to be careful to recognize illegality for such reason (see Supreme Court Decision 2004Do7360, Jan. 13, 2005, etc.).

(3) The lower court convicted Defendant 1, who wishes to be a candidate under the Public Official Election Act, with respect to the contribution act listed in the annexed list 1 of the lower judgment, on the ground that the act of donation was deemed unlawful, and that the act of donation was recognized.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on contribution acts and illegality under the Public Official Election Act.

4. Violation of the Political Funds Act by Defendant 1, Defendant 2, and Defendant 3 due to the remittance of KRW 10 million by Defendant 3, and violation of the Public Official Election Act by Defendant 1 and Defendant 2

The court below affirmed the judgment of the court of first instance which acquitted Defendant 3 of the above facts charged on the ground that it is insufficient to recognize that Defendant 3 remitted KRW 10 million to the deposit account in the name of the non-indicted, as the fund for activities related to the election campaign against Defendant 1.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by violating the

5. Violation of the Political Funds Act by Defendant 1, Defendant 2, and Defendant 4 due to Defendant 4’s delivery of KRW 5 million in cash, and violation of the Public Official Election Act by Defendant 1 and Defendant 2

(1) The main text of Article 45(1) of the Political Funds Act provides that “any person who contributes or receives political funds (referring to a person who commits the relevant violation as a member of a political party, supporters’ association, corporation, or other organization; hereinafter the same shall apply) by means not provided for in this Act shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 10 million won.” Article 3 subparag. 1(f) of the same Act provides that “any person who intends to be a candidate under the Public Official Election Act (including a Preparatory Committee for Central Party Formation), any person who intends to be a candidate under the Public Official Election Act, any supporters’ association, any executive officer or employee of a political party, or any other person who is engaged in any political activity, shall be punished as political funds.” The foregoing provision does not prohibit and punish any person engaged in any political activity from receiving and receiving all money, etc. provided for political activities, but only the act of receiving and receiving money, etc. which is objectively anticipated to be disbursed as expenses for political activities, and whether any person actually has actually used any political activity after receiving and receiving political funds by means not provided for political funds.

(2) The lower court convicted Defendant 1 of the facts charged that Defendant 4 gave Defendant 1, who wishes to be a candidate in the election of the 20th National Assembly member of the Republic of Korea, 5 million won in cash with gambling.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine regarding the subject of the offense of

6. Violation of the Public Official Election Act by Defendant 2 and Defendant 5 due to the provision of remuneration related to the election campaign by Defendant 5

The court below affirmed the judgment of the court of first instance which acquitted Defendant 5 of the above facts charged on the ground that it is insufficient to recognize that the 6 million won, which Defendant 5 remitted to Defendant 2, was provided in connection with the election campaign against Defendant 1.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by violating the

7. Conclusion

Defendant 1, Defendant 4, and the Prosecutor’s final appeal are all dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)