The meaning of "election" and "election" with respect to interference with the freedom of election prescribed in Article 237 (1) 1 of the Public Official Election Act.

Articles 3, 218-10(1), 230(1)1, and 237(1)1 of the Public Official Election Act

[Plaintiff-Appellant] 2006Do5019 decided Nov. 23, 2006 (Gong2007Sang, 86)

Defendant

Prosecutor

Seoul High Court Decision 2013No573 decided March 29, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on intimidation against Non-Indicted 1

“Interference with the freedom of election” under Article 237(1)1 of the Public Official Election Act is established when an act of threatening an elector, election campaign manager, etc. is committed in connection with an election. Here, “an elector” includes not only a person who is registered in the electoral register or the electoral register of overseas electors but also a person eligible to enter the electoral register, etc. before preparing the electoral register or the electoral register of overseas electors (see, e.g., Articles 3, 218-10(1), and 230(1)1 of the Public Official Election Act). The term “election” means “a motive for matters concerning an election, such as voting, election campaign, or election, in a specific election.” The subjective constituent elements of “Interference with the freedom of election” include not only the object and form of the act, but also do so (see, e.g., Supreme Court Decision 2006Do5019, Nov. 23, 2006).

The lower court upheld the first instance judgment that acquitted the Defendant on the ground that this part of the facts charged did not constitute a case where there is no proof of criminal facts, on the grounds that it is difficult to view that Nonindicted 1 did not constitute an elector under the Public Official Election Act, and that the Defendant made intimidation against Nonindicted 1 on the ground that it constitutes a case where there is no proof of criminal facts.

However, according to the relevant statutes and the records, Nonindicted Party 1 is eligible for entry in the electoral register for the 18th presidential election. Examining this in light of the above provisions of the Public Official Election Act, Nonindicted Party 1 constitutes an elector as provided by Article 237(1)1 of the Public Official Election Act. In so determining, the lower court erred by misapprehending the legal doctrine on the elector’s “an elector” under the Public Official Election Act. In addition, in light of the aforementioned legal doctrine, the lower court erred by misapprehending the legal doctrine on the requirements for the establishment of “an intention to infringe on the freedom of voting activities, etc. held by the elector” in the establishment of “an act of interference with the freedom of election”.

However, according to the records, the defendant thought the non-indicted 2's candidate as his political partner and did not contact himself, it was merely a person who saw the remaining non-indicted 1 as recorded in the facts charged by telephone, and there is no evidence sufficient to recognize that the defendant made such a statement with the motive for the election. Therefore, it is difficult to view that the defendant's act with the above behavior as intimidation Non-indicted 1.

Ultimately, the lower court determined that the charges of intimidation Nonindicted 1 on the election constituted a case where there is no proof of facts constituting the crime. However, the lower court’s error as seen earlier is acceptable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the relevant legal doctrine, thereby affecting the conclusion of the judgment. The allegation in the grounds of appeal on

2. As to the ground of appeal on the intimidation against Nonindicted 3 by an election campaign manager

The lower court upheld the first instance judgment that acquitted the Defendant on the ground that this part of the facts charged also constitutes a case where there is no proof of criminal facts, on the grounds that: (a) Nonindicted 1 received a intimidation call from the Defendant, and immediately delivered such fact to Nonindicted 3; and (b) even if not, it cannot be deemed that the intention of Nonindicted 3 was proven in light of the circumstances indicated in its reasoning, it did not constitute a case where there was no proof of criminal facts.

Examining the reasoning of the judgment below in light of the records, the court below’s measure is just and acceptable (it is difficult to deem that the defendant threatened Non-Indicted 3 to the election as seen above even if the defendant acknowledged that he threatened Non-Indicted 3), and contrary to what is alleged in the grounds of appeal, there is no violation of law by violating logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending related legal principles, which affected

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)