[2] Whether the “public opinion poll on election” under Article 108(5) and (11) of the Public Official Election Act includes “public opinion poll on election” (affirmative)

1. Whether the intra-party competition provided for in Article 57-3 (1) of the Public Official Election Act includes the intra-party competition based on the public opinion poll method;

A. The Public Official Election Act limits the method of an intra-party competition campaign as follows. Political parties are entitled to conduct an intra-party competition campaign to recommend candidates, i.e., the intra-party competition, and where a political party conducts an intra-party competition [including a public opinion poll replacing the intra-party competition that is conducted in accordance with the party constitution, party regulations and the written agreement among the candidates for the intra-party competition for those who are listed as the candidates for the intra-party competition (including the case where an additional points are given to women, disabled persons, etc.)], anyone who is not elected as a candidate for the intra-party competition may not be registered as a candidate for the same constituency of the relevant election (Article 57-2). In addition, in a case where a political party grants voting rights to those who are not party members and non-party members, a competition campaign may not be conducted in a way other than that falling under any of the subparagraphs of Article 57-3 (1) of the Public Official Election Act for those who are not party members and general voters who are not likely to be registered as a competition candidate (see Supreme Court Decision 212Do1272, May 27, 20127,

The purpose of the Public Official Election Act to restrict the method of the intra-party competition campaign is to prevent the use of orderly competition campaign by preventing the overheated of the intra-party competition campaign, and to prevent the intra-party competition campaign from abusing it as a legal means of evading the regulations on the prohibition of pre-election in substance, etc. Therefore, where a person who intends to participate in the intra-party competition conducts a competition campaign beyond the scope permitted by the Public Official Election Act in preparation for the intra-party competition even before the registration as a preliminary candidate or where a person who intends to participate in the intra-party competition conducts a competition campaign beyond the scope permitted by the Public Official Election Act (see Supreme Court Decisions 2006Do8869, Mar. 15, 2007; 2008Do6232, Sept. 25, 2008).

The Public Official Election Act does not have a definition on voting. The prior definition of voting refers to a work that pays in a certain place with the consent of the members or opposition to any matter, or with the intention of expressing an intention on the ballot paper. The Public Official Election Act sets up a polling station by marking the voting method in the ballot paper with respect to an election for public office and limits the provisions on the ballot papers and ballot boxes (Articles 146(1), 147, 150, 151, and 159), but there is no restriction on the voting method with respect to the intra-party competition (Articles 151 and 159). Therefore, there is sufficient means to put a ballot paper on the ballot paper by which a specific person among the candidates for the intra-party competition should become a candidate.

Article 108(1) and (2) of the Public Official Election Act does not provide a separate definition provision on public opinion poll, and it does not stipulate that public opinion poll is included in the intra-party competition by allowing public opinion poll using a method similar to that of a fake voting or a seal voting, or a ballot paper that is similar to a ballot (Article 108(1) and (2)). In addition, it is possible to replace the intra-party competition with a public opinion poll and if certain, it is possible to replace the intra-party competition with a public opinion poll, and it is also included in the

In full view of the above provisions and legislative purport of limiting the method of intra-party competition campaign, the intra-party competition where political parties allow party members and non-party members to express their intent to choose who is to become a candidate for the election among candidates for the intra-party competition constitutes “party-party competition for which party members and non-party members grant voting rights to persons who are not party members,” as provided in Article 57-3(1) of the Public Official Election Act, and the method of exercising voting rights is not always restricted by way of recording in ballot papers, and barring special circumstances, it shall also be deemed that the aforementioned method of expressing their intention of choice through the public opinion poll method is also included.

B. The following facts are revealed according to the evidence duly adopted and examined by the court below.

The Defendant, through Nonindicted 1, for the purpose of conducting the competition campaign in relation to the intra-party competition for the election of △△△△△ Party candidate for the ○○○○○○○ Party (hereinafter “instant intra-party competition”), conducted the instant intra-party competition campaign on the seventh-party local election in 2018, through Nonindicted 1, for the purpose of providing information on the mobile voting procedure and encouraging Nonindicted 2 to participate in the voting. The instant intra-party competition was conducted by reflecting 50% of the voting for all responsible party members and the public opinion poll for the general △△△△△ (the size of this table 3,000), based on the results, 50% of the voting for all responsible party members and the public opinion poll for the general △△△△ Party (the size of this table 3,00). The public opinion poll conducted the method of recommending candidates based on the results thereof. The Defendant informed Nonindicted 1 and the name of the representative and one candidate through two days from April 7, 2018 to April 8, 201.

C. The lower court determined that Defendant’s act violated Article 57-3(1) of the Public Official Election Act regarding the intraparty competition campaign on the premise that the instant intraparty competition constitutes “party competition conducted by giving voting rights to party members and persons who are not party members” under Article 57-3(1) of the Public Official Election Act. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court did not err by misapprehending the legal doctrine on “party competition conducted by giving voting rights to party members and persons who are not party members” under Article 57-3(1) of the Public Official Election Act.

2. Whether the provisions of Article 108 (5) and (11) of the Public Official Election Act are violated;

Article 8-8(8) of the Public Official Election Act provides that “Public opinion falling under any of the following subparagraphs shall not be deemed public opinion poll on an election under this Act” and does not exclude “public opinion poll on an election under the Public Official Election Act.” The Public Official Election Act regulates various regulations on public opinion poll in order to prevent abuse of public opinion poll as a means of election campaign for a specific candidate and to ensure the fairness, accuracy, and reliability of public opinion poll. Considering the content of such regulations and legislative intent of the Public Official Election Act, the “public opinion poll on an election” under Article 108(5) and (11) of the Public Official Election Act shall also be deemed to include “public opinion poll on an election” related to the intraparty

The lower court determined that the Defendant violated Article 108(5) and (11) of the Public Official Election Act by asking questions as to whether he/she is a candidate who is supporting the candidate without disclosing the name and telephone number of the public opinion poll institution and organization by taking measures, such as call-up of intraparty competition, etc.

Examining the reasoning of the lower judgment and the evidence duly admitted in light of the aforementioned legal doctrine, the lower court did not err by misapprehending the legal doctrine on the meaning and scope of “public opinion poll on election” as prescribed by the Public Official Election Act

3. The remaining grounds of appeal

A. The lower court determined that the Defendant, within the educational organization of an educational institution, provided Nonindicted 2’s election campaign by taking advantage of his official act, provided money and valuables that are not in accordance with the provisions of the Public Official Election Act in relation to election campaign, provided money and valuables to the competition campaign-related persons for the purpose of having the competition campaign voters vote, and provided money and valuables to the competition campaign-related persons, and made each contribution act on behalf of Nonindicted 2 as a candidate for the election.

Examining the reasoning of the lower judgment in light of the relevant 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 without exhaust all necessary deliberations, or by misapprehending the legal doctrine on the distinction between election campaigns and competition campaign, as provided in Article 115 of the Public Official Election Act, and on the contribution act

B. According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal may be filed on the ground of unfair sentencing only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed. Therefore, in this case where a more minor sentence has been imposed on the Defendant, the argument that sentencing is unfair

4. Conclusion

The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)