[1] The scope of recognition of the crime of purchase and request for purchase under Article 230 of the Public Official Election Act

[2] The case holding that Article 230 (3) of the Public Official Election Act is established in a case where the defendants demanded that the above candidate or the other party candidate provide money in return for the use of a CD containing a content that could lead to a string of the candidate's support by a specific presidential election, or for the use of a width

[1] Article 230(1)1 of the Public Official Election Act provides that a person shall be punished in cases where money or goods are provided to an elector “to make another person cast or not cast a vote, or to make another person elected or not elected.” Thus, the crime of purchase is not established only where money or goods are provided to the elector who is provided with money or goods, etc. for the purpose of having another person cast or not cast a vote, but also where money or goods are provided to the elector who is provided with money or goods, etc. for the purpose of having another person cast or do an act that may affect the other person’s voting intent or the success of a specific candidate. In addition, if a person requests money or goods, etc. to be provided to the other party, the crime

[2] The case holding that Article 230 (3) of the Public Official Election Act is established in a case where the defendants demanded that the above candidate or the other party candidate provide money in return for the use of a CD containing a content that could lead to a string of a certain presidential candidate's support, such as the width or width of a CD, and the defendants demanded that the above candidate or the other party candidate provide money

[1] Article 230 (1) 1 and (3) of the Public Official Election Act / [2] Article 230 (1) 1 and (3) of the Public Official Election Act

Defendant 1 and three others

Defendant 3 and Prosecutor

Attorney Kim Han-soo et al.

Seoul High Court Decision 2008No1137 decided June 26, 2008

All the judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to Defendant 3’s ground of appeal

The above defendant's dismissal of the appeal by the above defendant cannot be considered as the ground for appeal on the ground of misapprehension of legal principles, incomplete deliberation, and violation of the law against the rules of evidence, since it is obvious that he did not submit only an unreasonable sentencing as a ground for appeal against the judgment of the court of first instance.

2. As to the Prosecutor’s Grounds of Appeal

Article 230(1)1 of the Public Official Election Act provides that a person shall be punished in cases where money or goods are provided to an elector for the purpose of enabling or not to vote, or getting elected or not to be elected. Thus, the crime of purchase is established not only where money or goods are provided to the elector who is provided with money or goods, etc. for the purpose of directly affecting the voting of the elector who is provided with money or goods, but also where money or goods are provided to the elector who is provided with money or goods, etc. for the purpose of having the elector affect another person’s voting intent or engage in any act affecting the price of a specific candidate. In addition, if money or goods are provided to the other party, the crime of requesting the purchase of money or goods is established

According to the court below's lawful examination of evidence, the defendant 3 found a CD (hereinafter "the CD of this case") containing videos with the intent of forcing the candidate to "in-house BK" in the Gwangjin-gu, the first 17th presidential election around October 17, 2007, and the defendant 1 and 4 conspired with the non-indicted 1, the head of the legal support group of the Lee Chang-joon, to provide money and valuables "3 billion won", and the defendant 1 and 2 conspired with the non-indicted 1, the second 3 billion won candidate's request to provide the CD of this case to the non-indicted 2, the National Assembly member of the Republic of Korea on December 12, 2007, and the defendant 1 and 2 did not explicitly request the defendant 2,50 billion won or more to provide the CD of this case to the non-indicted 1,500 million won or more for the purpose of offering the CD of this case to the non-indicted 2, 2007.

According to the reasoning of the judgment below, in order to establish the crime of demanding purchase under Article 230 (3) of the Public Official Election Act as to the Defendants, the court below held that the act of an elector to receive money and valuables by exercising the right to vote, i.e., voting by the relevant elector, and that the Defendants’ demand for money from Nonindicted 1, 2, and 3 in return for the CD does not demand money and valuables for the purpose of selling his intention to vote as the 17th presidential elector. Thus, the above crime of demanding purchase was not established.

However, in light of the legal principles as seen earlier, the Defendants’ act of demanding the payment of money explicitly or implicitly from the candidate’s side or from the other party’s party to the instant CD containing the content that the Defendants could cause a shock to the support of the candidate for e-mail constitutes a crime of demanding purchase under Article 230(3) of the Public Official Election Act.

Nevertheless, the court below's decision that the defendants' act did not constitute a crime of purchase request is erroneous in the misunderstanding of legal principles, such as unreasonably limited interpretation of the object of the crime of request for purchase under Article 230 (3) of the Public Official Election Act and preventing the act of receiving money and valuables related to election, which is recognized as practically necessary to punish, thereby affecting the conclusion of the judgment.

Therefore, without further proceeding to decide on the remainder of the grounds of appeal by the prosecutor, the part of the judgment of the court below that acquitted Defendant 4 and the part that acquitted Defendant 1, 2, and 3 on the violation of the Public Official Election Act should be reversed. The part that acquitted Defendant 1, 2, and 3 among the judgment of the court below that acquitted the above Defendants should be sentenced to a single punishment on the grounds that the guilty part of the judgment of the court below and the concurrent crimes under the former part of Article 37 of the Criminal Act or the ordinary concurrent crimes under Article 40 of the Criminal Act should be sentenced to a single punishment

3. Conclusion

Therefore, all of the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)