[1] Whether an act of distributing a letter of personnel management, etc. to indicate his/her name, etc. and appeal for support constitutes a distribution of documents by unlawful means under Article 93(1) of the Public Official Election Act (affirmative)

[2] Requirements for a violation of restrictions on holding a rally for the formation of a political party under Articles 256(3)5 and 140(1) of the Public Official Election Act

[3] Whether an act of a preliminary candidate's appeal for support with the name of a tourist bus violates the provisions of Article 60-3 (1) 2 of the Public Official Election Act (affirmative)

[1] The act of a person who wishes to become a candidate to indicate his/her name, etc. and distribute his/her name, etc. to appeal for support constitutes the act of distributing documents by unlawful means under Article 93(1) of the Public Official Election Act.

[2] Article 256(3)5 of the Public Official Election Act provides that a person who holds a rally for the formation of a political party shall be punished in violation of Article 140(1) of the same Act. Each of the above provisions prohibits a person who is not a member of the political party from holding a rally for the formation of a political party beyond the scope recognized by social norms and subject to punishment for such violation. This does not require the first person to attend the rally for the formation of a political party.

[3] The main text of Article 60-3 (1) 2 of the Public Official Election Act permits a preliminary candidate to appeal for support on his/her own name cards, and the proviso does not allow such act in the subway station and other open places where many people pass or gather as stipulated by the National Election Commission Regulations. Article 26-2 (1) 1 of the Regulations on the Management of Public Officials Election, which is the National Election Commission Regulations, provides that "passenger inside" shall be one place where many people pass or gather, and therefore a preliminary candidate's appeal for support with his/her name in a tourist bus violates the provisions of Article 60-3 (1) 2 of the Public Official Election Act.

[1] Article 93(1) of the Public Official Election Act / [2] Articles 140(1) and 256(3)5 of the Public Official Election Act / [3] Articles 60-3(1)2 and 254(3) of the Public Official Election Act, Article 26-2(1)1 of the Rules on the Management of Public Official Election

[1] Supreme Court Decision 2005Do3717 decided Mar. 24, 2006 (Gong2006Sang, 766)

Defendant

Defendant

Attorney Yang Chang-young

Daejeon High Court Decision 2006No309 Decided September 29, 2006

The appeal shall be dismissed. One hundred and twenty-five days out of the number of detention days after the appeal shall be included in the original sentence.

The defendant and public defender's grounds of appeal are also examined.

1. As to the distribution of a document by unlawful means

The main text of Article 93(1) of the Public Official Election Act (hereinafter referred to as the "Act") provides that "no one shall distribute, post, spread, show, or display any advertisement, letter of personnel management, poster, poster, photograph, document, picture, picture, picture, printed material, recording tape, video tape, and others similar thereto which include the contents supporting, recommending, or opposing a political party (including the preparatory committee for the formation of a new political party and the platform and policy of a political party; hereafter the same shall apply in this Article) or candidate (including a person intending to become a candidate; hereafter the same shall apply in this Article) or indicating the name of a political party or candidate's name in order to have an influence on the election from 180 days before the election day (in case of a special election, the time when the reason for holding the election becomes final, in the case of a special election) to the election day." Thus, any act of a person who wishes to be

According to the records, the defendant was a member of the party (name omitted) of the non-indicted 1 (name omitted) at the time of sending the year of this case. On January 31, 2006, the defendant registered as a preliminary candidate for the market (name omitted) of the non-indicted 1 (name omitted), and on May 31, 2006, the non-indicted 4 Dong local election implemented on May 31, 2006, was a candidate for the non-indicted 2 (name omitted) market. At the time of sending the year of this case, the defendant was deemed to be a candidate for the non-indicted 4 Dong local election at the time of sending the year of this case to the non-indicted 1 (name omitted). On the other hand, the bill was prepared in the name of "the defendant who wishes to become a candidate for the non-indicted 1 (name omitted)" and the defendant's act of sending the documents to the non-indicted 15 (name omitted) by requesting the defendant to support the defendant.

The judgment below to the same purport is just, and there is no error of misconception of facts or misapprehension of legal principles as alleged in the grounds of appeal.

2. On the violation of restrictions on holding a rally for the formation of a political party

Article 256(3)5 of the Act provides that a political party shall punish a person who holds a rally for the formation of a political party in contravention of the provisions of Article 140(1) of the Act. Article 140(1) of the Act provides that “If a political party holds a rally for the formation of a political party, a rally for the merger, or a rally for the reorganization of a political party, or the election of candidates (hereafter in this Article referred to as “party rally for the formation of a political party”) from 120 days before the election day (in cases of a special election for which the reason for holding the rally becomes definite after 120 days prior to the election day, the time when the reason for holding the rally becomes definite) to the election day, only the party members shall hold a rally for the formation of a political party, a rally for the formation of a political party, or a rally for the election of candidates (in cases of the election of candidates, a person who is not a party member may invite a person who is not a member within the extent recognized by social norms.” The above provisions prohibit a person who is not a party.

In this case, as long as the Defendant, who was dispatched approximately 1,119 1,00 members, who are not members of the political party formation rally, to the members of the Dong-gu or the Daejeon Western-gun Civil Association, held a rally for the formation of a political party, even if only the party members participated in the rally for the formation of a political party, it shall be deemed that

The judgment of the court below to the same purport is just, and there is no error of law as alleged in the grounds of appeal.

3. As to the election campaign using private organizations and other organizations and private organizations

Examining the evidence adopted by the court below in light of the records, the court below is justified in finding facts as stated in its judgment and finding the defendant guilty on this part of the facts charged, and there is no error of law such as misconception of facts due to violation of the rules of evidence as alleged in the grounds of appeal

4. As to the contribution act

Article 112(1) of the Act defines the act of offering money, goods, and other property benefits, expressing intent to offer benefits, or promising to provide them to persons in a constituency as a contribution act, and Article 112(2)1(e) of the Act provides that "an act of providing tea and drinks, such as tea, rice tea, laver (excluding alcoholic beverages) and drinks (excluding alcoholic beverages) to persons visiting an election campaign office, election campaign liaison office, or the office of a political party within ordinary limits shall not be deemed as a contribution act. According to the records, the court below acknowledged the fact that the defendant, based on the evidence adopted by the court below, provided 20 or more persons on average who visit the office at the office used as an election campaign office as an office of the Union as well as an office, with a restaurant installed and a meal such as rice liquor, yeast, and yeast, etc., which does not constitute an act not deemed as a contribution act under Article 112(2)1(e) of the above Act, contrary to what is alleged in the grounds of appeal.

5. As to the contribution act by bearing the expenses for tourism and election campaign in the tourist bus

In light of the records, the court below's finding the defendant guilty as to the fact that the co-defendant 3 of the court below, who received the defendant's order based on the adopted evidence, provided the opportunity for tourism to 110 persons, such as non-indicted 4, etc. by receiving the support from the non-indicted 3, etc., and provided the opportunity for tourism, is justified, and there is no violation of the rules of evidence,

Meanwhile, the main text of Article 60-3 (1) 2 of the Act permits a preliminary candidate to appeal for support on his/her own behalf, and the proviso does not allow such an act in the subway station and other open places where many people communicate or gather as prescribed by the National Election Commission Regulations. Article 26-2 (1) 1 of the Rules on the Management of Public Officials Election, which is the National Election Commission Regulations, provides that the act of a preliminary candidate to appeal for support while ordering the name of a tourist bus violates the provisions of Article 60-3 (1) 2 of the above Act.

In the same purport, the Commission's decision that found the defendant guilty of this part of the crime is just, and there is no violation of law such as misunderstanding of legal principles as alleged

6. On the issue of unfair sentencing

In this case where a sentence of imprisonment with labor for less than 10 years is imposed, the reason that the sentence of the court below is too unreasonable is not a legitimate ground for appeal in light of the provisions of Article 383 subparagraph 4 of the Criminal Procedure Act.

7. Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)