2014Do7316 Violation of the Public Official Election Act

A person shall be appointed.

Defendant

Attorney B

Daejeon High Court Decision 2014No154 decided May 23, 2014

September 26, 2014

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

The grounds of appeal are examined.

1. As to the crime of the contribution act

In light of the circumstances in the judgment below, the court below determined that the defendant had a criminal intent to make a contribution under the Public Official Election Act because the amount equivalent to interest during the period from the time when the defendant paid the overdue wages to the time when he received the same amount from the company of this case is provided free of charge to the retired worker of this case, and thus the defendant's act constitutes a contribution act under the Public Official Election Act, and the defendant has a time interval between the time when he paid the overdue wages and the time when he received the repayment later, and therefore, it is in accordance with the general sense and normal rules to regard that he did not take advantage of the circumstances that the interest equivalent to interest during the above period should be provided to the company of this case. At that time, the defendant did not have been able to obtain a refund from the company of this case about the above overdue payment and the interest equivalent to the above interest, and therefore, it is sufficiently recognized that the defendant had a criminal intent to commit a contribution act under the provision of profits equivalent to the above interest. In light of the relevant legal principles and records, the judgment of the court below is justifiable and there is no error in the misapprehension of legal principles

2. As to the grounds for exclusion of illegality

A. Article 112 of the Public Official Election Act comprehensively provides for the type of the contribution act subject to punishment under Articles 257(1)1 and 113 of the same Act, and Paragraph (2) of the same Article provides for the case where the contribution act by a candidate, etc. does not constitute a formal act or an official act, but is limited to the case where the contribution act by the candidate, etc. is within the scope of social order which is naturally created as a kind of ordinary living form, even if it does not constitute a formal act or an official act under Article 112(2) of the same Act, there may be cases where the illegality is discovered because it does not violate social rules as a kind of formal act or official act. However, it needs to be careful to recognize the rejection of illegality for such reason (see, e.g., Supreme Court Decisions 2003Do1697, Aug. 22, 2003; 200Do8240, Mar. 15, 2007).

B. In light of the fact that it is difficult to see that the Defendant’s contribution act constitutes a courtesy or an official act, and that it is necessary to recognize illegality for the contribution act that does not constitute a courtesy or an official act as stipulated in Article 112(2) of the Public Official Election Act for the reason that it does not violate the social rules, etc., the court below determined that the above contribution act does not constitute a ground for excluding illegality.

C. However, in light of the legal principles as seen earlier, it is difficult to accept such determination by the lower court for the following reasons.

According to the reasoning of the judgment below and the evidence that the court below was not adopted or rejected, the defendant knew of the fact that the retired workers of the company of this case were to pay the unpaid wages to the retired workers of this case through C through the request of C, and that the retired workers of this case were to pay the unpaid wages to the retired workers of this case. The defendant succeeded to the arbitration and promised to pay the unpaid wages to the retired workers of this case through C, and the defendant again paid the unpaid wages to the retired workers of this case. However, if the company of this case did not pay the remaining overdue wages to the retired workers of this case, the defendant would have been able to pay the unpaid wages once again from the company of this case or C, considering that he would have been able to pay the unpaid wages to the retired workers of this case, the fact that the company of this case paid the remaining wages of this case to the retired workers of this case on behalf of the defendant, even if the defendant actually paid the overdue wages of this case within 0 days through one month or one month before the payment of the overdue wages of this case, the fact that the defendant was paid the entire wages of this case between the defendant or the retired workers of this case.

Therefore, in light of the general public’s sound common sense and social norms by comprehensively taking into account the economic benefits from the above contribution act, the background leading up to the contribution act, the election relation, the relationship between the object of the contribution act and the defendant, and the friendly density, it is reasonable to evaluate that the illegality of the act is dismissed as it does not violate social rules, even if the defendant, in light of the above legal principles, is able to receive payment for the overdue wages of the retired worker, even if he or she strictly and carefully recognizes the grounds for rejection of illegality.

Therefore, the judgment of the court below which rejected the defendant's assertion that illegality is excluded and found guilty of the facts charged is erroneous in the misunderstanding of legal principles as to the grounds for the dismissal of illegality and failing to exhaust all necessary deliberations, which affected the conclusion of the

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Kim So-young

Justices Kim Yong-deok

Justices Ko Young-han