2010No. 38 Action to seek confirmation of invalidity of an election for a smuggling market

2012. Confirmation of tolerances, defects, etc.

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Madnasia

The Chairman of the Extraordinary Election Commission

Attorney Jeon-soo et al., Counsel for the defendant-appellant

March 30, 2012

April 27, 2012

1. The intermediate confirmation of this case shall be dismissed.

2. The plaintiff's main claim is dismissed.

3. Litigation costs shall be borne by the Plaintiff.

In this lawsuit, it is confirmed that the election of the Yangyang market, which was implemented on June 2, 2010, is null and void. In this case, it is recognized that there is a serious defect in the contents of the decision of the President in the lawsuit seeking nullification of an election (Supreme Court No. 2003No. 26). Therefore, it is confirmed that the Defendant’s refusal of the Plaintiff’s assertion in this case is illegal, based on the res judicata effect of the decision of the lawsuit seeking nullification of an election (Supreme Court No. 20

1. Determination on the legitimacy of a lawsuit for interim confirmation

A lawsuit for interim confirmation is to seek confirmation by combining litigation procedures with respect to the existence of a right relationship in a preliminary relationship with respect to the judgment of the original claim while the lawsuit is pending. The lawsuit for interim confirmation filed by the Plaintiff is unlawful, because it does not relate to specific rights and duties or

2. Determination as to the claim on the principal lawsuit

(a) Basic facts;

Comprehensively taking account of the overall purport of the pleadings in Gap evidence 23, it can be acknowledged that the candidate 28,028, Kim ○○ candidate 23,226, and 5,657, respectively, obtained 5,657, and the candidate 4,802, which was decided as the elected person on June 3, 2010.

B. The plaintiff's assertion

1) Ballot counting by means of a computer system

Article 5 of the Addenda to the Public Official Election Act (Act on Election of Public Officials and Prevention of Election Malpractice) stipulates that the ballot counting by computer system can be conducted only by a special election in consideration of the fact that there is an examination of computer system.

However, as the ballot counting machine used for the ballot counting of the instant election depends on a computer operated by the operating program as a system connected to 1:1 each of the voting papers classified into a candidate or a non-classified mark, and a computer directly controlling the ballot papers, the ballot counting machine is an electronic ballot counting machine, namely, an electronic ballot counting machine.

Therefore, the election of this case is invalid since the ballot counting by the electronic ballot counting machine is not a special election.

2) The omission of signatures by the election commission in the ballot counting proceeding list.

Article 178(2) of the former Public Official Election Act (amended by Act No. 10981, Jul. 28, 2011) provides that the public announcement of the number of votes obtained by each candidate shall be made by voting district by the chairperson of the Gu/Si/Gun election commission in accordance with the ballot-counting table compiled and prepared by voting district, but all members of the Gu/Si/Gun election commission present shall inspect the number of votes obtained before the public announcement and sign and affix seals on the ballot-counting table. The purpose of the legislation is to prevent disputes over ballot-counting affairs and ensure fair ballot-counting. Accordingly, the public announcement of the number of votes obtained by each candidate according to the ballot-counting table without the signatures of all members of the Gu/Si/Gun election commission present is invalid.

However, the ballot counting table at the time of the election of this case is invalid because there is only the seal of the members of the election commission present at the time of the election of this case, and the ballot counting is invalid because there is no signature.

(iii) any defective ballot counting that is not guaranteed by a normal ballot counting witness;

If the ballot-counting witness intends to enhance the fairness and transparency of the election by properly monitoring the ballot-counting through the ballot-counting witness system, he/she shall be two times the number of ballot-counting teams in the number of ballot-counting teams in the opening (to open the arrangement that covers the censorship of members; to open the number of ballot-counting boxes in the case of using the ballot-counting machine; to open the number of ballot-counting boxes). In the simultaneous elections, Article 215(1) of the Public Official Election Act provides that the ballot-counting witness shall be appointed and reported by eight persons for each political party that recommended the candidate, and the independent candidate shall be appointed and reported by 10 persons regardless of the number of the opening ballot-counting teams.

Therefore, the election of this case constitutes a defective ballot counting that is not guaranteed by a normal ballot counting officer, and thus the election of this case is invalid.

C. Determination

1) Determination on the first argument

A) The validity of Article 5 of the Addenda to the Election of Public Officials and the Prevention of Unlawful Election Act (Act No. 4739 of March 16, 1994)

Article 5 of the Addenda to the Public Official Election Act (amended by Act No. 4739, Mar. 16, 1994) stipulates that "Special election, etc. conducted after this Act enters into force, may carry out ballot-counting affairs by means of computer systems. The National Election Commission shall decide on the ballot-counting by consultation with the political party having a negotiating body in the National Assembly" (Article 5 (1) of the Addenda to the Public Official Election Act).

Based on the above provision, the plaintiff argues that the ballot counting affairs by computer system are limited to the special election, and that the election by expiration of the term of office such as the election of this case is not allowed by computer system.

However, Article 5 (1) of the above Addenda provides that "special election, etc." is "special election". Even if the above article is interpreted as a literature, it shall be interpreted that only the ballot counting of the special election can be carried out by the computer system, and the election at the expiration of the term, such as the instant election, cannot be carried out by the computer system.

This is only the idea that the computer system can be used for the ballot counting system in line with the age of the personal computer system, but it is not meaningful that the special election can be used only for the ballot counting.

In addition, Article 278 of the Public Official Election Act, which is a provision on the administration and ballot counting by the computer system, was newly established only by the Act No. 6265 of February 16, 2000, and this Rule of the Public Official Election Act, which is a provision on the administration and ballot counting by the computer system, did not have any applicable provision on the administration and ballot counting by the computer system at the time when the above Addenda was enacted and implemented.

In addition, the Addenda is merely a transitional provision that assists the provisions of this Rule, and the above provision is only a supplementary provision of the Election of Public Officials and the Election Prevention Act enacted in 1994, and it cannot be said that the above provision has been amended in several times, and the name has changed to the Election of Public Officials Act in 2010.

B) Legal grounds for the use of the instant ballot counting machine

Article 178 (4) of the current Public Official Election Act provides that the ballot counting procedures and ballot counting procedures and other necessary matters shall be prescribed by the National Election Commission Regulations, and accordingly, Article 99 (3) of the former Public Official Election Management Regulations provides that the Gu/Si/Gun Committee may divide ballot papers by kind, invalidation, or by candidate or use the machine or computer system necessary for calculation in the ballot counting.

In full view of the contents of Gap's evidence 1 through 6 and the purport of the entire pleadings, it can be recognized that the ballot counting machine used in the instant ballot box is composed of a ballot counting machine for the control machine with the program automatically compiling the voting papers for each candidate except the main body, the program recognizing the voting paper for each candidate and the unclassified voting paper, and the ballot counting machine for the ballot counting machine with the program automatically compiling the voting papers for each candidate except the ballot counting box. According to the above facts of recognition, the ballot counting machine used in the instant election should be distinguished from the ballot counting box for each candidate or for each candidate or the necessary machine or computer box for calculation in the ballot counting under Article 178 (4) of the Public Official Election Act and Article 99 (3) of the Regulations on the Management of Public Officials Election delegated to the above provision.

As a reference, Article 278(1) of the Public Official Election Act (amended by the computer system) provides that the National Election Commission shall promote the computer system for the purpose of accurate and prompt management of voting and ballot counting and other election affairs. Article 278(1) provides that the procedures and methods of voting and ballot counting, commission of computerized experts and ballot-counting assistants, preparation, verification, and storage of computer system operating protocol, the organization, function, and operation of the Electronic Election Promotion Council, and other necessary matters shall be prescribed by the National Election Commission Regulations, respectively. The Regulations on the Management of Public Official Election amended by the National Election Commission Regulations (Article 148 through 159) provides that the Special Cases concerning the Electronic Voting and Ballot Counting shall be newly established in Chapter 2 (Articles 148 through 159) of the National Election Commission Regulations and the Regulations on the Management of Public Official Election (Article 16) provide that the voting and ballot counting by the computer system shall be carried out using a video screen of the electronic voting machine in which voting and ballot counting by a candidate can be pointed out at the same time by the number of votes and ballot tickets.

C) Therefore, the Plaintiff’s assertion that the ballot counting by a computer system can only be made by a substitute under Article 5 of the Addenda to the Public Official Election Act (amended by Act No. 4739 of March 16, 1994). This part of the Plaintiff’s assertion is without merit.

2) Determination on the second argument

A) Article 178(2) of the former Public Official Election Act (amended by Act No. 10981, Jul. 28, 2011) provides that the public announcement of the number of votes obtained by each candidate shall be made in each voting district by the chairman of the Gu/Si/Gun election commission according to the ballot-counting table prepared by the voting district, but all members of the Gu/Si/Gun election management committee present at the meeting shall inspect the number of votes obtained before the public announcement and sign and affix seals on the ballot-counting table. The purpose of the legislation is to ensure that elections are carried out fairly through democratic procedures and to enhance transparency in ballot-counting. Thus, it is reasonable to interpret the term "any signature or seal" as stipulated in the above provision as a signature or seal, not a signature or seal, but a signature or seal.

B) Based on the above interpretation, the fact that all members of the Seoyang City Election Commission present at the time of the election of this case censorship the number of votes obtained by each voting district and affix their seals to the ballot counting table and did not sign it is not a dispute between the parties.

The Plaintiff asserts that the number of votes obtained in accordance with the ballot counting table without signatures and seals of all the election commission members present at the Plaintiff is invalid, on the premise that the election of this case is invalid. However, the election of this case is invalid because the number of votes obtained by all the election commission members present at the Plaintiff was inspected, and the legislative intent of which is to have them sign and affix seals on the ballot counting table is to enhance the fairness and transparency of the election. However, the election commission members should sign and affix seals on the ballot counting table, but only if the fairness and transparency of the election are guaranteed and affixed, there is no reason to deem that the election is not secured (Article 178(2) of the Public Official Election Act amended by Act No. 10981, Jul. 28, 2011; Article 178(2) of the Public Official Election Act provides that the number of votes obtained by each candidate shall be published because all the election commission members affix their seals only on the ballot counting table, and it does not constitute the ballot counting.

C) Article 224 of the Public Official Election Act provides that the High Court, upon receipt of a complaint, shall decide the invalidation of all or part of the election, only when it deems that there was a violation of the provisions on election in an election lawsuit, even if there was an influence on the result of the election. As pointed out by the Plaintiff, even if there was a violation of the provisions on election by affixing a seal only on the ballot counting situation list by the members of the election commission present at the election in the instant election as pointed out by the Plaintiff and failing to sign it, the election cannot be held invalidated, unless it is deemed that such violation affected the result of the election.

However, in full view of the evidence evidence Nos. 23 and 24 as well as the overall purport of the arguments and arguments, even though all the election commission members affixed a seal on the ballot counting table, they inspected the number of votes obtained by each candidate before affixing a seal, and the ballot counting and election records prepared in relation to the election of this case on June 3, 2010 can be acknowledged that the defendant and all the members who are the chairperson are affixed a signature and seal, and the above ballot counting and election records did not contain any indication in the column of "a special witness in the progress of the ballot counting" of the above ballot counting and election records, and it appears that there were no errors in the inspection of the number of votes obtained by each candidate who is a candidate who is a member of the smuggling-si election commission, even though there was a violation of the above provision of the election of this case, such violation did not affect the result of the election. Thus, the election of this case is valid.

D) Therefore, the Plaintiff’s assertion on this part is without merit.

3) Judgment on the third argument

Article 215(1) of the Public Official Election Act provides that in the simultaneous elections, eight ballot-counting witnesses shall be selected and reported by each political party that recommended a candidate, and two independent candidates shall be selected and reported by the independent candidate. Thus, even if the above provision is unconstitutional as asserted by the plaintiff, the above provision cannot be determined on the premise that the above provision is unconstitutional unless the above provision is declared unconstitutional by the Constitutional Court's decision on the constitutionality of law.

The purpose of the above provision is to enhance the fairness and transparency of the ballot counting by having the political party that recommended the candidate and the ballot-counting witness selected by the independent candidate confirm the ballot-counting process, but the overall management and supervision of the ballot-counting and other elections are not limited to those of the Central Election Commission and the election commission at each level, and the fairness and transparency of the openings are guaranteed not only by the ballot-counting witness but also by the members and employees of the Election Council Committee, the ballot-counting assistant, and the number of the ballot-counting witnesses necessary to enhance the fairness and transparency of the ballot-counting, in full view of the fact that the above provision belongs to the legislative discretion of the legislator.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the intermediate confirmation lawsuit of this case is dismissed as unlawful, and the plaintiff's main claim is dismissed as it is without merit. It is so decided as per Disposition.

Maximum seal (Presiding Judge)

Park Jong-chul

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