(영문) 대법원 2021.6.24. 선고 2019도13234 판결

1. A. Article 112(1) of the Public Official Election Act provides money and other valuables to a candidate or a person who intends to become a candidate with an intention to take the effect of the contribution, and such person becomes a contributor under Article 112(1) of the Public Official Election Act. However, the contribution contributor, who is an entity assessed as having made the contribution, is not always limited to the actual contributor of the goods, etc. at all times. In a case where it is unclear that one party is a contributor because it is not consistent with the contributor and the person who made the contribution or it appears as being involved in the act of contribution together with the external appearance, the contribution should be designated by taking into account all the circumstances such as the motive or purpose of the contribution, the process of the contribution, the relationship between the donor and the person who made the contribution, and the person who received the contribution. Therefore, if the person in violation of Article 115 of the Public Official Election Act is assessed as the contribution, it is sufficient that the person has the right to ownership or disposal of the goods provided, and it does not necessarily have to be decided (see, Supreme Court Decision 20138Do17.

B. The first sentence of Article 115 of the Public Official Election Act provides that "no one shall make, or have another make, any contribution to the election for a candidate (including any person intending to become a candidate) or political party (including the preparatory committee for the formation of a new political party) to which he/she belongs, even though it is not provided for in Article 113 or 114." The term "election" means any one which is related to the election, such as motiveing or borrowing of the election, even though it is not an election campaign for the election.

Article 1 of the Public Official Election Act provides that "the purpose of this Act is to contribute to the development of democratic politics by ensuring that elections prescribed by the Constitution of the Republic of Korea and the Local Autonomy Act are held fairly in accordance with the free will of the people and democratic procedures and by preventing any malpractice related to such elections," Article 7 provides that "the duty of fair competition of political parties and candidates, and Article 47 (1) provides that "If political parties recommend candidates to run in an election for public office pursuant to paragraph (1)," Article 47 (2) provides that "when political parties recommend candidates, they shall follow democratic procedures." In light of the fact that an intra-party election for selecting candidates to run in an election for public office has been held fairly in accordance with the free will of the people and democratic procedures, the election for selecting candidates to run in an election for public office has been held only for the pertinent election for public office, and ultimately, the election for public office is related to the pertinent election for public office, and therefore, Article 100 (1) provides that a third party is entitled to recommend candidates to run in an election for public office within 16.4.

2. For reasons indicated in its holding, the lower court upheld the first instance judgment convicting the Defendant of the instant charges on the ground that the Defendant, rather than a mere delivery of money and valuables, constitutes a contribution act, which is the subject of violation of Article 115 of the Public Official Election Act, and that the primary election is related to the pertinent public election, and that the Defendant, as the primary election, included regional standing members in the primary election to select the order of candidates for the instant proportional representative election, made a contribution act in order to have the Nonindicted Party elected the Nonindicted Party as the first candidate for proportional representative, was the Defendant made a contribution act on behalf of the Nonindicted Party.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the scope of application under Article 115 of the Public Official Election Act and the subject of

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