[1] The meaning of "election campaign" under the former Public Official Election Act and the standard for determining the scope of prohibited election campaign

[2] Whether the court of final appeal may reverse the judgment of the court of final appeal to the effect that the defendant is not guilty in a case where only the prosecutor files an appeal against the judgment below that found the remaining defendant guilty of interpretation and application of the law (affirmative)

[1] Articles 89(1), 254(2), and 255(1)13 of the former Public Official Election Act (Amended by Act No. 12267, Jan. 17, 2014) / [2] Articles 383 subparag. 1 and 384 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2015Do11812 Decided August 26, 2016 (Gong2016Ha, 1457) / [2] Supreme Court Decision 2001Do6730 Decided March 15, 2002 (Gong2002Sang, 942) Supreme Court Decision 2008Do2588 Decided October 9, 2008

Defendant

Prosecutor

Daejeon High Court Decision 2015No406 decided October 5, 2015

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

Before determining the grounds of appeal, we examine it ex officio.

1. The summary of the facts charged in the instant case is as follows: (a) in collusion with Nonindicted 1, 2, and 3 on June 4, 2014, the Defendant established the “○○ Future Economic Research Forum” (hereinafter “instant forum”), which is a similar institution, for the purpose of winning Nonindicted 1 to the ○○ City Mayor, in collusion with Nonindicted 1, 2, 3, 4, and 5, and carried out an election campaign for the election of Nonindicted 1’s ○○○ City Mayor prior to the election campaign period, in collusion with Nonindicted 1, 2, 3, 4, and 5.

2. The lower court: (a) applied Articles 255(1)13 and 89(1) main text of the former Public Official Election Act (amended by Act No. 12267, Jan. 17, 2014; hereinafter “Public Official Election Act”) and Article 30 of the Criminal Act to the violation of the Public Official Election Act due to the establishment of a similar institution; and (b) applied Article 254(2) of the Public Official Election Act and Article 30 of the Criminal Act to the violation of the Public Official Election Act due to prior election; and (c) convicted all of the Defendants by applying

3. However, the judgment of the court below cannot be accepted for the following reasons.

(1) In order to punish a person pursuant to Article 255(1)13, the main text of Article 89(1), and Article 254(2) of the Public Official Election Act, the purpose of “election campaign” should be either for the purpose of “election campaign” or for the pertinent act itself be recognized as an “election campaign”.

(2) The meaning and scope of election campaigns prohibited under the Public Official Election Act should be determined according to the following specific standards (see Supreme Court en banc Decision 2015Do11812, Aug. 26, 2016).

(1) The term "election campaign" means an act objectively recognized by the intention of promoting the election or defeat of a specific candidate in a specific election, and whether such act constitutes such act shall be objectively determined on the subject of an act indicated outside, not the internal intent of the principal who performs such act.

② The intent of the above purpose is not only an explicit method such as requesting support for a specific election, but also an expression that leads to the extent that it can easily be inferred from an elector’s perspective in light of the objective circumstances at the time. To deem that there was an intention of the above purpose, the mere fact that the relationship with the election can be inferred or that the elector was motiveed for matters regarding the election is insufficient, and the fact that the elector was obviously aware of the act of promoting the success in a specific election.

③ Since the subject matter of an election campaign is an important concept that the pertinent act is specified, it can be deemed that the pertinent act constitutes an election campaign only when it is recognized that it is for a specific election. In full view of various objective circumstances, such as the forecast or confirmation of the holding of a specific election, the time and interval between the relevant act’s time and the specific election day, the contents and the situation at the time of such act, and the relationship between an actor and a candidate, the reasonable determination of whether the pertinent act is subject

④ As part of ordinary social activities and ordinary political activities, political parties seeking the consent and approval of their own character and political knowledge by contacting electors, while raising awareness and positive images through the process of seeking and establishing policies that can receive support from them by listening to and accepting their opinions, such determination criteria should be applied as they are. Therefore, even if there is an intention to enhance awareness and positive images of ordinary social activities and ordinary political activities, such an act is not deemed an election campaign unless it is recognized that the act is expressed with the intention of promoting the election or defeat of a specific person in the election, with a particular election purpose.

(5) If the act in question appears in the form of activity through an organization, etc., it shall be examined whether it is objectively recognized from the perspective of the elector concerned, in addition to the purpose and details of the establishment of the organization, etc., personal composition, the time, method, details, size, etc. of the activity, in consideration of whether the activity was conducted for the purpose of promoting a specific person'

(3) According to the facts and evidence duly admitted by the lower court, ① the time of establishment of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was not an act of making an election campaign for the purpose of promoting the election of Nonindicted Party 1, but was not an act of promoting the election of Nonindicted Party 1’s ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s political activities, which was not an act of promoting the election of Nonindicted Party 1’s political activities, and was not an act of promoting the election of Nonindicted Party 1’s political activities.

(4) Examining the above circumstances in light of the legal principles as seen earlier, since the activity plan or main activities of the forum in this case were conducted at a time far away from the election day, it is limited to the degree that Nonindicted Party 1 predicted that he will take advantage of any future election, and it is not recognized that the Defendant, etc. explicitly asked support from Nonindicted Party 1 in the election of the ○○ Metropolitan City Mayor through its planning and activity process, and there is also no objective circumstance that it is possible for the Defendant, etc. to easily conceal the intent of Nonindicted Party 1 to promote the election of Nonindicted Party 1 in the above election from the elector’s perspective. Thus, even if the Defendant, etc. brought about the result of raising the awareness and positive image of Nonindicted Party 1 while engaging in activities in accordance with the purpose of the Articles of the forum in this case, it cannot be deemed an advance election campaign, and it is difficult to deem that the Defendant, etc. established the forum in this case for the purpose of

(5) Nevertheless, the court below erred by misapprehending the legal principles on the meaning of the "purpose of election campaign" and the meaning of the "election campaign" under Article 254 (2) of the Public Official Election Act and the remaining interpretation and application of the Public Official Election Act, which clearly affected the conclusion of the judgment, on the grounds as indicated in its reasoning, that the defendant, in collusion with Nonindicted 1, etc., violated the prohibition of establishment of similar agencies by establishing the forum in this case, and carried out a prior election campaign through activities of the forum in this case.

(6) In a case where there is a violation of the law that affected the judgment, the court of final appeal may render a judgment ex officio even if it is not included in the grounds of final appeal (Article 384 and Article 383 subparag. 1 of the Criminal Procedure Act). This is likewise applicable to the case where the judgment of the court below that found the defendant guilty of the remaining defendant, who is erroneous in interpreting and applying the law, did not file a final appeal, and only the prosecutor filed a final appeal on the grounds that there are different grounds, and it is evident that the prosecutor's final appeal was not filed for the benefit of the defendant (see Supreme Court Decisions 2001Do6730, Mar. 15, 2002; 2008Do2588, Oct. 9, 2008

4. Therefore, without examining the grounds of appeal by the prosecutor, the judgment below is reversed, and the case is remanded to the court below 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 Lee Sang-hoon (Presiding Justice)