[1] Whether an act for election or defeat in the intraparty competition for the election of a candidate to be recommended by a political party to run in an election for a public office constitutes "election campaign" under Article 58 (1) of the Public Official Election Act (negative in principle), and whether an act constitutes "election campaign" solely on the ground that the above act includes an intent to win or lose an election in an election for a public office incidental to the above act (negative)

[2] Where any institution, organization, or facility is not established for the election campaign of a specific candidate, but is established for the purpose of causing candidates to be elected as a candidate in the intra-party competition, whether it violates Article 89(1) of the former Public Official Election Act (negative)

[1] In full view of the main sentence of Articles 58(1) and 2, and the main sentence of Article 57-2(1) and Article 57-3(1) of the Public Official Election Act (hereinafter “Act”), “election campaign” refers to an act for election or defeat in an election for a public office, and the act for election or defeat in an election of a political party to elect a candidate recommended to participate in an election for a public office does not constitute “election campaign”. However, in fact, an act for election or defeat in an election for a public office may be deemed an election campaign only in exceptional cases where it can be deemed that an act for election or defeat in an election is performed in an election for a public office. Furthermore, Article 57-3(1) of the Act provides that “No competition campaign may be conducted by means other than those falling under any of the following subparagraphs, in which a political party grants voting rights to a party member and a person other than a party member,” thereby allowing not only a party member in the intraparty competition but also a person holding the right to vote in an election for a public office.”

[2] Article 89(1)(Prohibition of Establishment of Similar Institutions) of the former Public Official Election Act (amended by Act No. 11485, Oct. 2, 2012; hereinafter “former Public Official Election Act”) aims at maintaining fairness in election campaign organizations among candidates and preventing excessive competition and waste due to the establishment of various forms of election campaign organizations. The act of intra-party competition campaign conducted by using similar institutions in violation of Article 57-3(1) of the former Public Official Election Act to ensure that specific candidates are elected in the course of the intra-party competition, along with the structure or legislative intent of the provision, may be punished pursuant to Article 255(2)3 of the Public Official Election Act; Article 89(1) and legislative purport of the former Public Official Election Act (amended by Act No. 11485, Oct. 2, 2012; hereinafter “former Act”) prohibits establishment of private organizations and other organizations for “election” under Article 87(2) of the Public Official Election Act, if it does not violate Article 87(1) of the former Public Official Election Act for the purpose of election Act.

[1] Articles 2, 57-2(1), 57-3(1), and 58(1) of the Public Official Election Act / [2] Article 89(1) of the former Public Official Election Act (Amended by Act No. 11485, Oct. 2, 2012); Articles 57-3(1), 87(2), and 255(2)3 of the Public Official Election Act

[1] Supreme Court Decision 2003Do305 Decided July 8, 2003 (Gong2003Ha, 1743), Supreme Court Decision 2004Do7549 Decided January 13, 2005, Supreme Court Decision 2011Do17437 Decided April 13, 2012

Defendant 1 and five others

Defendant 2 and three others and the Prosecutor

Attorney Choi Jong-sung et al.

Gwangju High Court Decision 2012No278 decided September 27, 2012

The part of the judgment of the court below against Defendant 6 is reversed, and this part of the case is remanded to the Gwangju High Court. All remaining appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Of the grounds of appeal by the prosecutor against the Defendants, the argument that there is a misapprehension of the legal principles as to the scope of "election campaign" under the Public Official Election Act relating to the establishment and use of a similar agency and establishment of a private organization by the Defendants 6, 3, 4, 2, and 1, the election campaign by the persons who are prohibited from election campaign by the Defendants 6, 3, and 1, the participation in the planning of each election campaign by the Defendants 6, and 3, the prior election campaign by the Defendants 2, the provision of money and valuables related to the election campaign by the Defendants 3, 4, 2, and 5, the provision of money and valuables by the Defendants 3, 4, and 2, the provision of money and valuables related to each election campaign by the Defendants 3, 4, and 2, and the provision of money

A. The main sentence of Article 58(1) of the Public Official Election Act (hereinafter referred to as the "Act") provides that "the term "election campaign" in this Act means an act to be elected or not to be elected" and Article 2 provides that "this Act shall apply to the presidential election, election of National Assembly members, election of local council members and the heads of local governments (hereinafter referred to as "election for public office")." In addition, the main sentence of Article 57-2(1) provides that "a political party may hold a competition campaign (hereinafter referred to as "party-party competition") to recommend candidates for public office (hereinafter referred to as "party-party competition") and the main sentence of Article 57-3(1) provides that "a political party may not conduct an intra-party competition campaign by means other than those falling under any of the following subparagraphs in which a political party grants voting rights to a party member and a person who is not a party member."

In full view of the contents, structure, legislative purport, etc. of the aforementioned relevant provisions, the term “election campaign” means an act for the success or defeat in an election for a public office, and the act for the success or defeat in an election in the intra-party competition to elect a candidate recommended by a political party to run in an election for a public office does not constitute “election campaign”. However, in substance, an act for the success or defeat in an election in an election for a public office may be deemed an election campaign within the scope of exceptional cases where it is deemed that an act for the success or defeat in an election for a public office is performed in an election for the public office (see Supreme Court Decisions 2003Do305, Jul. 8, 2003; 201Do17437, Apr. 13, 2012). Furthermore, Article 57-3(1) of the Act permits a political party to vote for the intraparty competition for the sole reason that “an act for the success or defeat in an election for a public office is not a person holding the intra-party competition campaign.”

나. 원심판결 이유와 원심이 적법하게 채택한 증거들에 의하면, 2012. 4. 11. 실시될 광주 동구 국회의원선거에서 민주통합당이 그 후보자를 추천하기 위하여 이른바 국민경선제도를 실시하기로 한 사실, 이는 민주통합당 당원과 당원이 아닌 자를 포함한 선거구민들이 2012. 2. 20.부터 2012. 2. 29.까지 자신의 휴대전화 등을 이용하여 이른바 ‘모바일 경선인단’에 등록하고 그와 같이 확정된 경선인단이 2012. 3. 10.부터 2012. 3. 11.까지 모바일투표 등의 방법으로 당내경선 후보자들에게 투표함으로써 위 국회의원선거에서의 민주통합당 후보자를 선출하는 방식이었는데, 피고인 6의 보좌관인 피고인 4와 선거사무실 정책실장인 피고인 2 등은 2010년 광주 동구청장 지방선거 등에서 피고인 3의 선거운동을 ▽▽하였던 사람들이 중심이 되어 활동하던 ‘동구사랑여성회’를 비롯하여 피고인 3을 지지하는 활동을 하였던 사람들을 모아 광주 동구 13개 동마다 이른바 ‘경선대책위원회’를 조직하여 선거구민들을 상대로 모바일 경선인단 등록을 독려하자고 계획한 사실, 피고인 2는 위 계획에 대하여 피고인 3의 승낙을 얻고 실무책임자 인선 등에 대하여 상의한 뒤 2012. 1. 25. ‘OO동 경선대책위원회’라는 조직 명단을 작성하여 실무책임자인 피고인 1에게 송부하였고, 피고인 1은 위 명단에 따라 전직 △△1동장 공소외 1, 동구사랑여성회 ▽▽2동 회장 공소외 2에게 위 계획을 전달한 사실, 이에 따라 공소외 1은 ‘△△1동 비상대책위원회’(이하 ‘△△1동 비대위’라 한다), 공소외 2는 ‘▽▽2동 경선대책위원회’(이하 ‘▽▽2동 대책위’라 하고, △△1동 비대위와 일괄하여 ‘이 사건 각 대책위’라 한다)라는 명칭의 단체를 조직한 사실, 한편 피고인 4는 이 사건 각 대책위 등의 활동자금 명목으로 2012. 1. 31. 및 2012. 2. 7. 2회에 걸쳐 피고인 5를 통하여 피고인 1에게 합계 5,900만 원을 교부하고, 피고인 1은 다시 이 사건 각 대책위를 비롯한 경선대책위원회 책임자들에게 판시와 같이 위 돈을 나누어 주었던 사실, 공소외 1을 비롯한 △△1동 비대위 위원들은 2012. 2. 11.부터 2012. 2. 16.경까지 △△1동 일대에서 선거구민들을 상대로 모바일 경선인단에 등록할 것을 권유하고, 피고인 6의 업적 등의 내용이 담긴 홍보물을 제시하면서 일부 선거구민들에게 “□이다(피고인 6 후보자를 지지하여 달라).”라고 귀띔하기도 하는 방식으로 모바일 경선인단 신청을 독려하였고, ▽▽2동 대책위 위원들 또한 피고인 6의 지지를 호소하면서 모바일 경선인단을 모집한 사실, 피고인 2는 2012. 1. 31. 및 2012. 2. 21. 동구사랑여성회 소속 회원들을 상대로 “피고인 6 의원을 잘 부탁합니다.”라는 취지로 발언한 사실 등을 알 수 있다.

C. Examining this in light of the aforementioned legal principles, Defendant 6’s appeal for support against Defendant 6 should be deemed to have been made based on the intention of Defendant 6 to elect a candidate for the National Assembly member in the democratic integrated election. Furthermore, the circumstances acknowledged by the record, namely, Defendant 2, etc. discussed the establishment of each measure of this case, around January 20, 2012, the public opinion poll was published that Defendant 6’s support for Defendant 6 was behind Nonindicted 3, who was a candidate for the intraparty competition in the Gwangju Dong-gu constituency, and accordingly, Defendant 2, etc. obtained the support of Defendant 6 as a candidate for the intraparty competition. In addition, Defendant 6’s appeal to Defendant 6’s election cannot be seen as having been made for the purpose of election of the National Assembly member by securing the electors supporting Defendant 6 as a candidate for the intraparty competition through the establishment and activities of each measure of this case.

In the same purport, the court below's decision of not guilty of this part of the facts charged is just and acceptable, and contrary to the prosecutor's assertion, there is no error of law by misapprehending the meaning or scope of election campaign and competition campaign.

D. In order for a court to recognize facts constituting a crime different from those stated in the indictment ex officio without any changes in indictment, it must be within the extent consistent with the facts charged, and there should be no concerns over causing substantial disadvantages to the defendant’s exercise of his/her right to defense (see Supreme Court Decision 2012Do3032, Jun. 28, 2012, etc.).

On the other hand, the crime of offering money and goods or giving instructions related to election campaigns provided for in Articles 230(1)4 and (3) and 135(3) of the Act is a crime related to "election campaign" and the crime of offering and giving orders related to the intraparty competition provided for in Articles 230(7)2 and (8) of the Act is a separate crime related to the competition campaign in the process of the intraparty competition and its elements are different. In addition, according to the records of the court below, there was a serious legal dispute between the public prosecutor and the defendants about whether the activities of each of the measures of this case constitute "election" in the process of the court below, while there was no particular mention about whether the purchase of the intraparty competition and giving orders related to the election campaign provided for in the indictment, and the public prosecutor did not change the indictment with the same crimes. Thus, the court below did not ex officio recognize the purchase related to the intraparty competition and giving orders related to the change of the indictment, or did not request the public prosecutor to do so, and there is no error in the misapprehension of legal principles about the substantial criminal justice or omission.

E. Article 89(1) of the former Public Official Election Act (amended by Act No. 11485, Oct. 2, 2012; hereinafter “former Act”) aims at maintaining the equity of election campaign organizations among candidates and preventing excessive competition and waste due to the establishment of various forms of election campaign organizations. In addition, the act of the intra-party competition campaign conducted by using a similar institution in violation of Article 57-3(1) of the Act to elect a specific candidate in the course of the intra-party competition, along with the structure or legislative intent of the relevant provision, may be punished pursuant to Article 255(2)3 of the Act; Article 89(1) of the former Act and its legislative purport similar thereto prohibit establishment of private organizations or other organizations for “election” under Article 87(2) of the Act, which is not established for the purpose of “election of a specific candidate” but for the purpose of election of a candidate, if it violates Article 87(1)9 of the former Act.

In the same purport, the decision of the court below that acquitted the charged facts of this part is just and acceptable, and there is no error of misapprehending the legal principles as to the prohibition of establishment of similar agencies under Article 89 (1) of the former Act, or omitting judgment.

2. As to Defendant 2’s ground of appeal

A. The term "election campaign" under Article 58 (1) of the Act refers to all acts that are advantageous to the necessity for, or favorable for, the election or winning of a specific candidate, and that can objectively be objectively recognized for the purpose of promoting an election or defeat. Specifically, in determining whether a certain act constitutes an election campaign, it shall be determined simply by observing not only the name of the act, but also the form of the act in question, i.e., the time, place, method, etc. of the act in question in a comprehensive manner, and whether the act is an act accompanying the purpose of promoting the election or defeat of a specific candidate, and such standard shall apply likewise to determining which act constitutes "election campaign" under Article 57-3 (1) of the Act (see Supreme Court Decision 2008Do6232, Sept. 25, 2008).

For the reasons indicated in its holding, inasmuch as Defendant 2 conspired with Defendant 4 and 1 to organize each of the measures in this case and caused its members to recruit a mobile competition team to support Defendant 6 candidates in the intra-party competition, the court below found Defendant 2 guilty of this part of the facts charged on the ground that the competition campaign was actually conducted beyond the internal and procedural preparation for the competition campaign, and thus, it is reasonable in light of the above legal principles, and there is no error of law by misapprehending the legal principles as to the scope of the "party competition campaign".

B. In addition, the lower court affirmed the first instance judgment convicting Defendant 2 of this part of the charges on the ground that Defendant 2 was aware of the specific amount of money or the delivery thereof to each of the countermeasures members of the instant case, inasmuch as Defendant 2, along with Defendant 4 and Defendant 1, and Defendant 3 conspired to mobilization of organization in Defendant 3 and provide money to Defendant 6, and Defendant 4 actually paid money to Defendant 1, and Defendant 1 delivered this money to each of the countermeasures members of the instant case, the lower court affirmed the first instance judgment convicting Defendant 4 of this part of the charges on the ground that: (a) the specific amount of money was delivered to Defendant 2; and (b) there was a relation of co-principal with Defendant 4, who actually performed

In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there are no errors in the misapprehension of legal principles as to the act of contribution by a third party as stipulated in Article 115 of the Act, or in the misapprehension of legal principles as to the act of contribution by a third party,

C. Defendant 2’s remaining grounds of appeal are nothing more than grounds for fact-finding which belongs to the exclusive authority of the lower court as a fact-finding court, or in this case where a minor sentence is imposed more than ten years’ imprisonment or imprisonment without prison labor, the lower court’s determination of punishment is unreasonable, and it cannot be deemed a legitimate ground of appeal.

3. As to Defendant 3’s grounds of appeal and the Prosecutor’s remaining grounds of appeal on Defendant 3

A. As to Defendant 3’s ground of appeal as to the violation of the method of competition campaign and the competition campaign by a person who is unable to conduct the competition campaign

On January 20, 2012, the lower court, jointly with Defendant 4 and 1, planned the establishment of each measure of this case, as indicated in its reasoning, decided on January 25, 2012, that “Defendant 2 would take advantage of the organization of the head of the Gu, if a light-line is coming into existence,” and that at the time, Defendant 3 was stated with Defendant 2 as well as Defendant 2, it was sufficiently recognized by the prosecutor’s office and the first instance court’s statement. Defendant 1 also was urged by the prosecutor’s office to the effect that “Defendant 1 sent a list stating the 13 core movement members who were elected by Defendant 3, and Defendant 2 sent Defendant 3 a mobile light-line message inside the road inside the official office of the head of the Gu, or Defendant 2 sent Defendant 1’s mobile text message to Defendant 3, who was the main agent of the instant case, and Defendant 1 was urged by Nonindicted Party 3 and Defendant 3, who was the main agent of the instant case.”

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the above fact-finding and judgment of the court below are just, and there is no error of law by misapprehending the legal principles as to a crime of conspiracy or conspiracy beyond the bounds of the principle of free evaluation of evidence in violation of

B. As to the grounds of appeal by the prosecutor on the act of making a third party contribution

The lower court found Defendant 3 not guilty on the ground that it was insufficient to recognize that Defendant 1 conspired to this part of the charges on the grounds that the facts charged are based on Defendant 1’s statement or Defendant 1’s statement, “Defendant 1 received KRW 39 million from Defendant 3, Defendant 6’s severe weather alerts of January 31, 2012, and distributed them to the persons responsible for each of the measures of this case, and Defendant 3 consented.” However, Defendant 1’s receipt of a third party’s contribution act was completed by Defendant 1’s receipt of the above money from Defendant 5, and there is no room for establishing a public collusion relationship after the completion of the crime.

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the renunciation of public offering relations, etc., by misapprehending the rules of logic and experience and exceeding the bounds of the free evaluation of evidence.

4. As to Defendant 4’s ground of appeal

Examining the reasoning of the judgment below and the reasoning of the judgment of the court of first instance maintained by the court below in light of its adopted evidence, the court below was just in finding Defendant 4 guilty of violation of the method of competition campaign and the facts charged as to the third party's act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of act of

5. As to Defendant 6’s grounds of appeal and the Prosecutor’s remaining grounds of appeal on Defendant 6

A. As to the grounds of appeal by the prosecutor on the establishment and use of a similar organization, establishment of a private organization, election campaign by a person who is unable to carry out an election campaign, participation in the planning of election by public officials, violation of the competition campaign method, and

The facts charged in a criminal trial must be proved by the prosecutor, and the judge should be convicted with evidence of probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it shall be judged with the benefit of the defendant (see Supreme Court Decision 2005Do767, Apr. 15, 2005, etc.).

The court below found Defendant 2 not guilty on the ground that it is difficult to recognize that Defendant 2’s above statement made by the prosecution to Defendant 6 was made public at the meeting of the City/Gu council members and the council members of the council, and that it was hard to recognize that Defendant 2 made such a proposal publicly and at the meeting of the council members and the council members of the council, Defendant 2 established and used the so-called “the head of the Gu organization” including the countermeasures of this case, and suggested Defendant 6 to the effect that Defendant 6 accepted it. However, in the court, Defendant 2’s prosecutor’s statement and legal statement are not consistent, and since it was difficult to recognize that Defendant 2 made such a proposal publicly and at the meeting of the council members of the City/Gu council and the council members of the council, the evidence submitted by the prosecutor alone cannot be deemed to have proved this part of the facts charged without any reasonable doubt.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the court below rejected the credibility of Defendant 2’s statement and found Defendant 2 not guilty on the ground that there was no proof of the crime. In so doing, the court below did not err by misapprehending the legal principles as otherwise alleged in the ground of appeal.

B. As to Defendant 6’s ground of appeal on prior election campaign due to “the speech at the place of residence”

Preliminary election campaign refers to any act necessary or favorable for the purpose of obtaining or obtaining a vote for the purpose of election of a specific candidate in a specific election, or any act necessary for or against the purpose of promoting the success or defeat in the election, which is objectively recognized by the intent of promoting the success or defeat in the election, among all acts that are unfavorable and necessary for the purpose of defeat in the election of a specific candidate, and is excluded from here, and whether an ordinary, ordinary, or social act is an ordinary or social act, shall be determined in light of social norms, comprehensively taking into account various circumstances, such as the social status of the offender and the other party, his/her relationship, motive, method, contents, and attitude (see Supreme Court Decision 201Do3862, Jul. 14, 2011, etc.).

In full view of the evidence adopted by the first instance court and the lower court, the lower court affirmed the first instance judgment that found Defendant 6 and Defendant 3 guilty of this part of the facts charged on the following grounds: (a) acknowledged that there was a prior promise between Defendant 6 and Defendant 3 to attend a meeting of the head of the Dong-gu Dong-dong, Gwangju, which was held in the order of the first instance court and the lower court, in the order of the first instance court; (b) determined that Defendant 6 attended a meeting of the head of the Dong, which has a large influence in the community for three months and one-month period at the time when the election campaign was left for the primary election for the National Assembly member, and that the election campaign taking advantage of his status as an incumbent public official, would bring about it within the scope of the legal framework; and (c) explained his parliamentary activities of the 18th National Assembly members, and (hereinafter referred to as “the speech at the time of the first instance court’s meeting”)

Examining the reasoning of the judgment below and the judgment of the court of first instance maintained by the court below in light of the above legal principles, the fact-finding and judgment of the court below are justified and there is no error of law by misapprehending the legal principles as to the scope of advance

C. Determination ex officio on Defendant 6’s prior election campaign regarding private organization

Judgment ex officio is made.

According to the records, the facts stated in the indictment of the case of the Gwangju District Court 2012 Gohap394, which combined pleadings by the first instance court, include the facts charged regarding the prior election campaign, and the following facts: “Defendant 6 established a similar institution called △△△△ One Emergency Countermeasures Promotion Committee and established a private organization at the same time, and established a private organization at the same time, and carried out a prior election campaign.” The facts charged regarding the prior election campaign include the facts charged, and the applicable provisions of the Act also include Article 254(2) of the Act on the prior election campaign.

Therefore, with respect to this part of the facts charged related to the establishment and use of each measure force of this case, the prosecutor should be deemed to have instituted a public prosecution on the crime of prior election campaign in addition to the crime of violating the prohibition of establishment of similar agencies or the prohibition of establishment of private organizations. However, the first instance court did not make any judgment on the crime of prior election campaign in this part, and the first instance court should decide ex officio on the omission of this part of the judgment. However, the court below did not make any judgment on the omission of this part of the judgment, but acquitted the defendant as to the establishment and use of similar agencies and establishment of private organizations without making any judgment thereon. The court below did not err in the misapprehension of the judgment on prior election campaign of this part which was indicted, which affected the conclusion of the judgment.

6. Conclusion

Of the judgment of the court below, the part against the defendant 6 is reversed, and this part of the case is remanded to the court below. The remaining grounds of appeal are without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)