[1] The meaning of "contribution" under Article 112 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election, and the scope of the other party to the contribution

[2] The purpose of Article 113 of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act is to restrict contributions by candidates

[3] Whether an act of a candidate's spouse delivering money to an election campaign worker for the purpose of offering it to the voters constitutes "contribution act" under Article 112 (1) of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts (affirmative)

[1] The term "contribution" under Article 112 (1) of the Public Official Election and Prevention of Unlawful Election Act (hereinafter "Public Official Election Act") means that one of the parties provides money, goods, or property benefits to the other party without compensation. The other party to the contribution is sufficient if he is a "person in the relevant constituency, or a meeting or event of an institution, organization, facility, or electorate, or a person who has relations with the electorate even if outside of the relevant constituency, or a person who has relations with the electorate in the relevant constituency, and the other party shall not be asked regardless of whether he or she is an

[2] The purport of Article 113 of the Public Official Election Act that prohibits a candidate and his spouse from making any contribution, regardless of whether such contribution is related to the election within a certain period prior to the election, is to prevent such a contribution from being likely to contribute to the establishment of a foundation for supporting the candidate or to be associated with a purchase act if such contribution is allowed due to high possibility that such contribution would be associated with the candidate's personal information, awareness, and policy.

[3] [Majority Opinion] The receipt of cash between a candidate's spouse and an election campaign worker does not simply keep a candidate's spouse for the purpose of delivering it to a specific elector, or allow him to use it for an illegal election campaign such as securing support marks by purchasing an unspecified number of voters, and thus constitutes "contribution" under Article 112 (1) of the Public Official Election Act, and it cannot be deemed that it is merely a preparation or preparation for the execution of a contribution act.

[Dissenting Opinion]

(1) Article 112(1)1 of the Public Official Election Act provides that the act of offering money and other goods to electorates constitutes a contribution act. The term "providing" refers to the act of devolving money and other goods to the other party. As such, delivering money and other goods to election campaign workers who intend to deliver them to voters is not an act of offering goods, but merely an act of preparing for an act of making an act of donation under Article 112(1)1 of the Public Official Election Act.

(2) The majority opinion argues that the fact that the election campaign worker distributed money from a candidate's spouse to electorates, etc. and the remaining fact that the campaign worker did not make any statement. However, in light of such fact-finding, the majority opinion held that the candidate's spouse provided the election campaign worker with money does not merely keep the campaign worker or have the worker use it for an illegal election campaign, such as purchasing an unspecified number of voters. Thus, it is not permissible to acknowledge a criminal fact different from the fact that the candidate was prosecuted for extending the charges without amending the indictment, based on the fact that it can be recognized by the court beyond the scope stated in the indictment, because it is contrary to the first stage principle of criminal procedure, and it does not constitute an act of offering goods to an unspecified number of voters, and it does not constitute an act of offering goods to an unspecified number of voters, and there is no basis to interpret that the delivery of goods to the campaign worker would be an act of offering the money to an unspecified number of voters, or that the candidate's spouse did not use it as an election expense according to the candidate's spouse's purpose, and it cannot be found that the remaining spouse did not belong to the defendant's right.

(3) Even if the majority opinion recognizes that the act of delivering money to a candidate or his spouse for the purpose of offering money to voters constitutes a contribution act, the act of offering money to the election campaign workers refers to not only the act of simply raising or enjoying the money, but also the prior meaning of "providing" but also the term of "providing" as well as the term of "providing" under the Public Official Election Act, it is clear that the act of simple delivery does not constitute "providing" under Article 112 (1) 1 of the Public Official Election Act, and therefore it does not constitute an act of offering money to a third party for the purpose of delivering money and others. Therefore, it is unconstitutional that the act of delivering money to the election campaign workers does not constitute a contribution act in violation of the principle of no punishment without law, and it does not constitute an act of giving money to a local responsible person as a contribution act under Article 112 (1) of the Public Official Election Act (see, e.g., Supreme Court Decision 198Do798, Jul. 198). 1988).

[Supplementary Opinion to the Dissenting Opinion]

(1) Under the election climate of our country, if only giving money to a person who finally receives money or goods should be subject to punishment, the legislative purpose cannot be achieved to eradicate the election campaign, and even if the money or goods are distributed in the middle stage, there is a need to punish him/her if the money or goods are distributed. Therefore, the "providing money or goods" under Article 112 (1) of the Public Official Election Act should not be limited to "the reversion of money or goods to the other party" as argued by the Dissenting Opinion. Thus, even if money or goods are provided to the intermediary, it should not be limited to "providing money or goods to the other party". Thus, even if money or goods are provided to the intermediary, it is not a simple custodian or a private person to deliver a specified money or goods to him/her, as long as there is a possibility of judgment and discretion on the object, method, and amount of money or goods distribution to him/her, it shall be included in "providing money or goods" under the above provision.

(2) Penal laws must be strictly interpreted and applied in accordance with the language and text, and they shall not be excessively interpreted or analogically interpreted in the direction unfavorable to the defendant, but the interpretation of penal laws does not exclude the teleological interpretation considering the legislative intent and purpose, legislative history, etc. of the relevant laws unless they go beyond the ordinary meaning of the text and text. Thus, the majority opinion does not have a teleological interpretation in accordance with the purpose and intent of the Public Official Election Act, which is within the ordinary meaning and scope of the language and text, and it does not constitute an extended interpretation or analogical interpretation that is within the boundary of the principle of no punishment without the law, and it does not constitute an extended interpretation or analogical interpretation under the principle of no punishment without the law. In addition, even if money and valuables were provided to others by a candidate, if it is paid for election expenses permitted by the law, such as allowances and compensation for actual expenses for persons engaged in election affairs as provided in Article 135 of the Public Official Election Act, even if the disbursement procedure is defective, it does not constitute a contribution

[Supplementary Opinion] The Majority Opinion’s interpretation that the meaning of the provision includes the elements of delivery in the concept of provision is unreasonable in light of the ordinary meaning of the term of legal terms, and despite the fact that there is no special ground to interpret it in relation to other provisions under the Public Official Election Act, it would result in the outcome that the legislative purpose of the Public Official Election Act, i.e., acceptance of money and valuables between the candidate and the intermediary for the purpose of the purchase of tickets can be achieved, in order to prevent the harm of the election campaign and to ensure the fair election of the candidate and the intermediary for the purpose of the purchase of tickets, and that the receipt of money and valuables between the candidate and the candidate are not separately provided in addition to the provision as a type of contribution act, even if it was for the purpose of the purchase of the voters, it would result in the interpretation of the law by clearly declaring the legislative deficiencies under the Public Official Election Act that the punishment is difficult, and thereby, it would result in the omission of the law on penal provisions to the defendant, under the name of the defendant.

[1] Article 112(1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Articles 113 and 257(1)1 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [3] Article 112(1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election

[1] Supreme Court Decision 96Do500 delivered on November 29, 1996 (Gong1997Sang, 260), Supreme Court Decision 96Do1558 delivered on December 23, 1996 (Gong1997Sang, 569), Supreme Court Decision 99Do4588 delivered on February 11, 200 / [2/3] Supreme Court Decision 98Do477 delivered on July 10, 1998 (Gong198Ha, 2178)

Defendant

Defendant

Law Firm Squa et al.

Busan High Court Decision 2001No88 delivered on May 10, 2001

The appeal is dismissed.

1. The facts charged and the summary of the judgment below

A. Facts charged

At the time of the election of the 16th National Assembly member, which was implemented on April 13, 2000, the defendant was the spouse of the non-indicted who was elected as a candidate for the local constituency at the time of the election of the 16th National Assembly member, and the spouse of the candidate was not allowed to make a contribution regardless of whether or not it is an election during the contribution-restricted period. ① On April 10, 200, the non-indicted 6 million won was given to the co-defendant in the election office of the non-indicted 63-1, who was on the 3rd floor of the 16th National Assembly member, who was in operation on April 11, 200, and ② on April 11, 200, the court below gave 3 million won to the co-defendant 200,000 won to the non-indicted 4,0000 won to the above co-defendant 4,000 won to provide the above election affairs to the above co-defendant 4.7 million won.

B. The judgment of the court below

The court below, on the grounds stated in its reasoning, found that the statement in the investigation agency and court of the court below that Co-defendant received each of the above money from the defendant is reliable, and the evidence duly examined and employed by the court of first instance is sufficient to recognize the facts charged of this case, and found the defendant guilty by applying Articles 257 (1) 1, 113, and 112 (1) 1 of the Public Official Election Act (hereinafter "Public Official Election Act").

2. Judgment on the grounds of appeal

A. Violation of the rules of evidence

Examining the evidence admitted by the judgment of the court of first instance as cited by the judgment below in light of the records, the judgment of the court below that recognized that the defendant provided co-defendant with a total of KRW 17 million over four times as above is acceptable, and there is no error of law by misconception of facts against the rules of evidence as alleged in the grounds of appeal.

B. M&D misunderstanding of legal principles as to contribution acts under Article 112(1) of the Public Official Election Act

In principle, "contribution act" under Article 112 (1) of the Public Official Election Act means that one of the parties provides the other party with money, goods, or property benefits without compensation (see, e.g., Supreme Court Decisions 96Do500, Nov. 29, 1996; 96Do1558, Dec. 23, 1996; 99Do4588, Feb. 11, 200); and the other party to a contribution act is "a person in the constituency, or an institution, organization, facility, or elector's meeting or event within the constituency, or a person who has relations with the elector, even if outside the constituency, if such person is an election campaign member or a political party member; and the purport of Article 113 of the Public Official Election Act, regardless of whether the candidate or his spouse has an opportunity to make a contribution to the election of the candidate in question within a certain period of time prior to the election (see, e.g., Supreme Court Decision 97Do984, supra.).

According to the facts established by the court below and the records, co-defendant 2 of the court below, while operating a store in his residence, registered as the non-indicted candidate's election campaign worker on March 29, 200, and driving a car from March 29, 200 to April 13, 200 to the day of the non-indicted's spouse, etc. The defendant attempted to carry out an election campaign by driving the vehicle. The defendant is in competition with the non-indicted's spouse as the non-indicted candidate on the election day on the election day, and distributed money to the non-indicted 17 million won to the co-defendant 4 times from April 10, 200 to April 12, 200, and distributed money to the non-indicted 30,000 won, and the co-defendant 2 of the court below did not divide the above facts from the above election office to the non-indicted 300,000 won and distributed money to the non-indicted 138,000 won.

Examining these facts in light of the legal principles as seen earlier, the receipt of cash between the defendant and the co-defendant in the court below does not simply keep the defendant to the co-defendant in order to deliver it to a specific elector, or make the defendant use it for illegal election campaigns such as securing support marks by purchasing a large number of unspecified voters, and thus constitutes an act of contribution under Article 112 (1) of the Public Official Election Act. Accordingly, it cannot be said that it is merely a preparation or preliminary act to conduct a contribution act as alleged in the grounds of appeal.

The judgment of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to contributions.

C. Conclusion

Therefore, the appeal is dismissed and it is so decided as per Disposition. It is so decided as per Disposition by the assent of all participating Justices except for a dissenting opinion by Justice Seo-sung, Zwon, Shin-chul, Son Ji-yol, and Park Jae-yol, and the majority opinion and the dissenting opinion are concurring with each of the following 4 and 5.

3. Dissenting Opinion by Justice Seo-sung, Zwon, Shin-chul, Son Ji-yol, and Park Jae-yol is as follows.

A. The lower court acknowledged the facts charged in this case that the Defendant, as the spouse of the candidate for an election of National Assembly members, provided money to co-defendants for the use of voters and violated the regulations on the restriction on contributions, and determined that such acts by the Defendant violate Articles 113 and 112(1)1 of the Public Official Election Act. The Majority Opinion is justified in the lower judgment, but it cannot agree with the Majority for the following reasons.

B. Article 112(1)1 of the Public Official Election Act provides that the act of offering money and other articles to voters constitutes a contribution act, and the term "providing" refers to the act of reverting money and other articles to the other party. The facts charged in the instant case does not purport that the defendant provided money to the co-defendant of the lower court for the purpose of offering money to voters, or that the defendant provided money to co-defendant of the lower court. It is apparent that the other party who intends to offer money in the instant facts charged does not have the right of voters and is not co-defendant of the lower court. As such, delivering money and other articles to the campaign worker who is to deliver to voters, is not an act of offering goods, but merely an act of delivering money and other articles to the campaign worker who is to deliver to voters, but it is merely an act of preparing for the campaign worker to conduct a contribution act under Article 112(1)1 of the Public Official Election Act.

Nevertheless, the lower court determined that the facts charged in this case constitute a violation of the prohibition of contribution acts, thereby misunderstanding the interpretation of Article 112(1) of the Public Official Election Act, which affected the conclusion of the judgment, and the grounds of appeal pointing this out are with merit, and thus, the lower court

C. The majority opinion that the judgment of the court below is justified is not clear, but its opinion cannot be accepted even if it is reasonably interpreted.

(1) The majority opinion acknowledges that Co-Defendant 1 distributed KRW 89.4 million to electorates, etc. among the 17 million won received from the defendant and that the remainder was used for other election activity expenses. However, in light of these facts, the defendant's offering of money to Co-defendant 1 in the court below did not simply keep or make a statement, but rather provided that Co-defendant 1 in the court below intended to use it for an illegal election campaign such as purchasing an unspecified number of voters. This opinion of the majority opinion is that although the facts charged in this case are the defendant's giving money to Co-defendant 1 in the court below, it can be understood that the defendant provided money to the Co-defendant 1 in the court below, and that the facts charged can be interpreted as such (i.e., if it is acknowledged that Co-Defendant 1 provided money from the defendant to voters, etc., the defendant can be viewed as a contribution act for the provision of money to voters, etc. as long as it is admitted that the defendant provided money from the defendant to voters, etc.).

The majority opinion is understood, and it is not permissible to recognize the criminal facts differently from the facts charged by expanding the charges without going through the amendment of indictment, based on the fact that it can be recognized by the court beyond the scope stated in the indictment, because it is against the principle of non-definite interest, which is the first stage of the criminal proceedings. In this case, the prosecutor indicted the defendant for the purpose of offering money to voters, which constitutes a violation of the prohibition of contribution act. As examined in this case, it is clear that the facts charged itself does not constitute a violation of the prohibition of contribution act, and the interpretation of the facts charged cannot be different depending on how Co-Defendant 2 actually handled money

The majority opinion held that Co-Defendant 1 supplied money to Co-Defendant 1 on the ground that Co-Defendant 1 distributed only part of the money received from Defendant to unspecified voters, etc., and that Co-Defendant 2 did not state the specific details of use on the remainder. However, it is not included in the act of offering goods to campaign workers to a specific right holder, but there is no ground to interpret that delivery of goods to a specific right holder is an act of offering goods to an unspecified number of voters. The logic that the act of delivering the same goods is an act of simple delivery according to whether he is a specific person or an unspecified number of voters. It cannot be established that the act of offering goods is an act of offering goods.

In addition, it cannot be deemed that the money was given to the election campaign worker from the beginning by stating the details of partial use of the money received by the election campaign worker. According to the logic shown in the majority opinion, if the candidate or his/her spouse made the election campaign worker in favor of him/her to give money to the right holder, if the election campaign worker fails to state the details of use by asserting that he/she used the money as another election campaign activity without wholly embezzlementing or delivering it to the right holder, it shall be deemed that the candidate or his/her spouse provided money to the election campaign worker, and if he/she fails to state the details of use, it shall be deemed that there is a violation of the prohibition of contribution by deeming that he/she or his/her spouse provided money to the election campaign worker. In addition, there is no need to explain that this conclusion is unfair. Furthermore, in this case, the court below argued that the co-defendant provided the money from the defendant to the electorate or used it as another election campaign activity according to the meaning of the defendant, on the ground that he/she did not state specific

In addition, without examining these problems, the majority opinion assumes that the facts that the court below did not recognize are recognized by the records, and without explaining the concept of the act of offering under Article 112 (1) 1 of the Public Official Election Act, which is the issue in this case, it is concluded that the crime of violation of the prohibition of contribution is established unless only a part of the money delivered by the defendant to Co-Defendant 1 was provided to many unspecified voters, etc., and the remaining details of use were not revealed. It infringes on the defendant's right to be tried according to due process. In order to recognize a crime differently from the facts charged, the court must give the defendant sufficient opportunity to defend himself through the modification of indictment to the extent that

Therefore, it is difficult to understand that the Majority Opinion’s logic that violates the principle of no accusation, disregards the principle of presumption of innocence, and infringes on the right to a trial according to legitimate procedures is against the Constitution and the Criminal Procedure Act that declares that the State has an obligation to confirm and guarantee the fundamental human rights of individuals, and gives up the criminal procedure procedure of an oralism, and adopts the impeachment litigation structure in violation of the Constitution and the Criminal Procedure Act.

(2) In light of the above, if the majority opinion is understood to the maximum extent possible, it can be deemed that the act of a candidate or his/her spouse giving money to an election campaign worker for the purpose of offering it to voters constitutes an act of offering under Article 112(1)1 of the Public Official Election Act. As such, if it is understood that the act of giving money to an election campaign worker for the purpose of offering it to voters is also a contribution act, the problems pointed out above are resolved.

However, the term "providing" means "providing or enjoying money," and its prior meaning are different from that of "providing", and it is clear that the simple delivery does not constitute "providing" under Article 112 (1) 1 of the Public Official Election Act, and it does not constitute a "providing" under Article 112 (1) 1 of the Public Official Election Act, and therefore delivery to the other party for the purpose of delivering money or other goods to a third party does not constitute a contribution act. In addition, Article 257 (4) of the Public Official Election Act provides that the benefit received by a person who has committed a violation of the prohibition of a contribution act should be confiscated, and it is premised on the fact that the act of making a contribution is in violation of the prohibition of a contribution act and the benefit is attributed to the owner of the benefit.

As the majority opinion, deeming that the act of delivering money to an election campaign worker constitutes a contribution act is unconstitutional legal interpretation that is contrary to the principle of no punishment without the law prohibiting an analogical interpretation of penal laws. This court has already expressed the opinion that the act of a candidate already delivered money to an election campaign worker in return for an allowance does not constitute a contribution act under Article 112(1) of the Public Official Election Act (Supreme Court Decision 98Do477 delivered on July 10, 198), and the majority opinion is inconsistent with this case.

D. There is no theory that the provisions of the Public Official Election Act, such as the prohibition of contributions, should be strictly applied in order to prevent the harmful effects of the election in the run-off and to ensure the fairness of election. However, there is no logic that the principle of no punishment without the law, the presumption of innocence, the principle of no punishment without the law, the principle of no punishment without the law, and the principle of no punishment without the presumption of innocence, and the principle that the violation of the procedural rights of the defendant may be allowed or infringed. The majority opinion that the majority opinion, without clearly determining the major issues discussed in the process of the agreement on the power transfer, must maintain the judgment of the court below by taking into account the circumstances that it is reasonable to punish the defendant as a result, is inconsistent with the Constitution, laws, and precedents, cannot be accepted. It is difficult to see that the Supreme Court, which

4. The Majority Opinion concurring with the Dissenting Opinion as follows.

A. There is no reason to deny the legitimacy of eradicating the presidential election in our country’s electoral climate.

However, when considering the form of a gold ticket election site, if a candidate or his/her spouse immediately gives money or goods to a person with a right to vote, it is extremely rare, and in most cases, if a candidate, etc. gives money or goods to a person with a duty to vote, it is widely distributed to many final voters by expanding the scope of money or goods through several interim stages, and the whole or part of the money or goods is useful in the process. Nevertheless, it is extremely difficult to clarify the whole process. Under such circumstances, if only giving money or goods to a person who finally receives money or goods should be subject to punishment, it is difficult to achieve the legislative purpose to eradicate a gold ticket election, and even if it is given at the middle stage, it is necessary to punish him/her if taken place.

Based on this purport, the majority opinion argues that the term "providing money and valuables" under Article 112 (1) of the Public Official Election Act should not be interpreted to mean only "a reversion of money and valuables to the other party" as asserted by the dissenting opinion. In other words, even if money and valuables are provided to an intermediary, it should not be interpreted to mean that giving money and valuables to an intermediary is included in "providing money and valuables" under the above provision, even if the intermediary is not a simple custodian, or a person who does so in mind to deliver a specific amount of money and valuables to a specific person, or there is room for a certain degree of judgment or discretion on the object or method of distributing money and valuables to him/her, as long as there is no designated portion to be attributed to him/her.

B. As long as the purport of the majority opinion is as above, in order for a candidate to be provided with money and valuables to an intermediary who is not a final right holder, it is sufficient for the intermediary to be provided with money and valuables, and whether all or part of the money and valuables have been used for the intermediary, and whether the intermediary became an intermediary at the time of receiving money and valuables, etc., and whether all or part of the money and valuables were used for the intermediary. However, in order to determine whether the intermediary had the above meaning discretion at the time of receiving money and valuables from the candidate, etc., it shall be determined by comprehensively taking into account all the circumstances such as the motive and circumstance of receiving money and valuables, etc., the purpose of use and method of use as at the time of receiving money and valuables, and the situation of election at the time of receiving money and valuables, etc., but if the actual use is revealed, it shall also be deemed as materials to confirm the existence of the intermediary discretion at the time of receiving money and valuables.

In this case, the majority opinion, based on the judgment of the court below and the record, arranged the facts that Co-defendant received money from the defendant and then the actual use of the money was also correct. The reason is that it is due to the fact that the actual use of the money ex post facto becomes good evidence to confirm that there was such discretion as to Co-defendant at the time of receipt of the money, and that fact is not because the establishment of the crime depends on the establishment of the crime. The dissenting opinion argues that the part of Paragraph (1) of this Article, such as the argument against the principle of infertility or presumption of innocence, is due to the misapprehension of the majority opinion's above purport.

C. The Dissenting Opinion argues that the facts charged in this case do not constitute a crime even in itself. In other words, the term "providing" refers to the reversion of money, goods, etc. to the other party, on the premise that the facts charged in this case was that the defendant provided to the co-defendant in the court below for the purpose of allowing the co-defendant to provide money to the right holder, and that the defendant did not provide money to the co-defendant in the court below, so long as it is obvious that the other party who intends to provide money is the right holder or is not the co-defendant in the court below, this is merely a preparatory act between the co-defendants to conduct

This argument is one of the premise that the meaning of "provision" is limited to "Reversion", and it cannot be accepted as a result of excessively meaningful interpretation of the part which stated that "for the purpose of providing "right holder" at the end of the facts charged in this case. The purport of the prosecutor's prosecution is that the defendant provided money to co-defendant in the original judgment, and that the defendant was indicted as a contribution act, or that the defendant provided money to the right holder in the original judgment, and that the defendant was indicted as having provided money to co-defendant in the original judgment. The purport of the prosecutor's prosecution is that the statement of "for the purpose of providing right holder" as stated in the facts charged is written according to the name of "co-defendant" or "for the purpose of securing the land surface" or "for the purpose of providing money," and it cannot be viewed to the purport that the prosecutor stated that the defendant was aware of the fact that the co-defendant received KRW 17 million from the defendant in the facts charged in this case as to co-defendant in the original judgment, and that the co-defendant was partly distributed to each of the money in the original judgment.

Therefore, we cannot agree with the Dissenting Opinion’s assertion on this part.

D. The Dissenting Opinion argues that the interpretation as stated in the Majority Opinion is unconstitutional interpretation that is contrary to the principle of no punishment without the law. Of course, penal provisions should be strictly interpreted and applied in accordance with the language and text, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, in the interpretation of penal provisions, the teleological interpretation that takes into account the legislative intent, purpose, legislative history, etc. of the law is not excluded

In a prior sense, the term "providing" means "to contribute" and "maring". In general, it does not necessarily mean that goods, etc. can be used or disposed of to the other party. It does not necessarily mean that certain benefits should be forfeited to the other party. The majority opinion is based on a teleological interpretation in accordance with the purpose of the Public Official Election Act within the ordinary meaning and scope of such language and text, and it does not constitute an extended interpretation or analogical interpretation that the principle of no punishment without law is bordered.

In addition, it cannot be said that the meaning of "providing" under the provisions of the Public Official Election Act, which are cited by the Dissenting Opinion, is hindered in interpreting the meaning of "providing" under the provisions of the Public Official Election Act, by distinguishing between "providing" and "delivery", or by stipulating that the benefits received should be confiscated.

E. Furthermore, the Dissenting Opinion argues that the interpretation of the Majority Opinion is inconsistent with the existing precedents of party members. However, even if the money and valuables were provided to others by the candidate, if the money and valuables were actually paid for the election expenses permitted by the Act, such as the allowances and reimbursement for actual expenses for persons engaged in the election affairs as provided in Article 135 of the Public Official Election Act, even if the payment procedure is defective, it does not constitute a contribution act, and it cannot be found that there is any part contrary to the interpretation of the Majority Opinion during the legal judgment of the decision. Accordingly, this part of the Dissenting Opinion is not acceptable.

5. Opinion concurring with the Dissenting Opinion by Justice Bae Ki-won

A. In the concurring opinion, the majority opinion argues that "providing money and valuables" under Article 112 (1) of the Public Official Election Act should not be limited only to the fact that the money and valuables are reverted to the other party, and even in the case of giving money and valuables to the interim person as the former right holder, it is interpreted that giving money and valuables to the interim person is included in "providing money and valuables" under the above provision, even in the case of giving a certain degree of judgment and discretion as to the object, method, and amount of distribution.

If the meaning of provision under the above provision is interpreted as above, it can be easily punished as a violation of the above provision in cases where the candidate or his/her spouse divided the money to the voters for the purchase of voters, and almost all cases where the money is given to the voters are divided to the voters. Therefore, it can be consistent with the realistic necessity to eradicate the election campaign.

B. However, such view is to interpret the elements of a violation of the current Public Official Election Act that does not stipulate an intermediary's act of giving money to an intermediary as a contribution act, and it does not deviate from the scope of the possible meaning of terms that can be seen as a standard to guarantee human rights protection and predictability to secure them, which are the most important function of the principle of no punishment without the law, or goes beyond the bounds of statutory formation of crimes anticipated by the above provision.

(1) In general, the term "contribution" means that one of the parties vests in money or property benefits without compensation to the other party, and the delivery of money or other valuables to a third party is not a contribution act. In defining a contribution act under Article 112 of the Public Official Election Act, the act of offering money or other things is stipulated as "the act of offering benefits" regardless of the name in subparagraph 10, as well as "the act of offering money or other things free lease, free transfer of goods, or exemption or reduction of debts" in subparagraph 2, and in Article 112 (2) of the Public Official Election Act, the act of not considered as a contribution act is defined as "the act of offering money or other things" and it is expressed that the person who receives money or other things acquires profits.

(2) The majority opinion argues that the prosecutor would provide the instant money to the right holder at the end of the indictment that the defendant is stated as "for the purpose of providing the right holder" in order to indicate that the defendant would correspond to co-defendants of the court below, and it is interpreted as "for the purpose of providing the right holder" and "for the purpose of providing the right holder". This is interpreted as representing the name of "for the purpose of providing the right holder" or "for the purpose of providing the right holder", but it is completely different from the meaning of "for the purpose of providing the right holder" and "for the purpose of providing the right holder".

The former means to designate the purpose of giving money, that is, the intermediary who receives money must divide all of the money to the right holder, but the latter includes the meaning that the intermediary can acquire part of the money at his/her own share only on the pretext of the latter.

If the money of this case is given as "the title of offering to voters" as stated in the majority opinion, it is naturally premised on the fact that part of the money belongs to co-defendant, who is the intermediary, and in such a case, it cannot be divided between the money to be actually provided to voters and the money to be acquired by Co-defendant in the original judgment. Therefore, there is no theory that the crime of violation of the prohibition of contribution as to the whole money is established from the dissenting opinion.

However, in this case, the defendant was indicted as "the co-defendant in the form of co-defendant with the right of retention" and the records of this case also applied to co-defendant with the right of retention, and there is no evidence suggesting that the defendant had the intention to revert part of the money to co-defendant in the court below.

Nevertheless, the majority opinion, contrary to the ordinary meaning of the above language and text, intends to consider the expression as a "title of right holder" where the meaning of the attribution of part of the intermediary can be understood as a "title of right holder". However, even in the case where the intermediary grants discretion to the object or method of distribution of money and the amount of distribution amount and grants the intermediary a share of money to the right holder, it shows that the part of the money should be attributed to the intermediary for the purpose of being provided as a contribution act. This is because the majority opinion does not mention that the part to be reverted to the intermediary should be attributed to the intermediary in order to be provided as a contribution act. This is the case where the majority opinion grants the intermediary the above discretion in giving money to the intermediary, and it does not mention that the part to be reverted to the intermediary is included in the provision only in the case where it is not designated (the meaning does not seem to be a specific meaning).

(3) On the other hand, the statutory language, which was compiled by the Ministry of Government Legislation from 1985, shall be recommended to use the term "as a term subject to improvement," and the term should be interpreted as being used in general in daily life. However, even if the statutory definition provision does not expressly provide for it, the term is used as a unique meaning of the existing legal system, unlike the meaning of the ordinary term, with regard to the legal language, which is used in a special meaning in the existing legal system, and the interpretation of any statute should not understand only the provision of the statute, and must draw a conclusion with the overall legal order in harmony with the overall legal order. Thus, in light of the provisions of Articles 130 and 133 (Bribery) of the Public Official Election Act, the Majority Opinion should have determined that the provision of the term "as a similar meaning to the provision of the other party and the delivery of the term to the other party can only be interpreted to include the provision of property benefits to the other party and the delivery of the term to the other party.

(4) The Supreme Court Decision 98Do477 delivered on July 10, 1998 ruled that the appropriate election expenses paid to persons engaged in the election affairs do not constitute a contribution act in addition to the defect in the relevant disbursement procedure. However, the grounds for such determination are that the amount paid for an appropriate election expenses is not an act of contribution to which the other party’s interest belongs, i.e., gratuitous provision of money, goods, property interest, etc. without any obligation. Thus, the supplementary opinion with the majority opinion with regard to this portion cannot be added.

C. In short, the Majority Opinion construing that the meaning of the provision includes the elements of delivery in the concept of provision is unreasonable in light of the ordinary meaning of the term of legal terms, and even if there is no specific ground for such interpretation in relation to other provisions under the Public Official Election Act, it would be unreasonable to prevent the harmful effects of the election campaign and ensure the fair election of the candidate and the intermediary, as in the instant case, that the acceptance of money and valuables between the candidate and the candidate can be punished for the purpose of purchase of the right, as well as the receipt of money and valuables can achieve the legislative purpose of the Public Official Election Act, i.e., in order to ensure the fair election of the candidate and the intermediary, as in the instant case, because the receipt of money and valuables between the candidate and the candidate for the purpose of purchase of the right of election can not be punished for the purpose of purchase of the right of election, even if it was for the purpose of purchase of the right of election, by clearly declaring the legislative deficiencies under the current Public Official Election Act that the punishment is difficult, and thus, it would result in an interpretation of the law

Chief Justice Seo-young (Presiding Justice) (Presiding Justice)