[1] The scope of "related persons who become the counter party to an inquiry, investigation, or a request for submission of data by members and employees of the Election Commission under Article 272-2 (1) of the Public Official Election and Prevention of Unlawful Election Act"

[2] The meaning of "a person who fails to comply with a request for submission of materials under Article 256 (4) 12 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts"

[3] The case holding that in case where a person scheduled to join the National Assembly member, who is not a member of the Saemaeul Council, attended the Saemaeul Council's transfer and taking-off ceremony and conducted daily personnel affairs for all the participants, and the president of the Saemaeul Women's Association concurrently engaged in personnel affairs at his/her next place, there is a reasonable ground to suspect that his/her act constitutes a violation of the election campaign period

[1] Where the provisions of Article 272-2 (1) of the Act on the Election of Public Officials and the Prevention of Election Malpractice are acknowledged to be suspected of election crimes, etc., a member or employee of each election commission may enter the relevant place to question or investigate the relevant person, or to request the submission of the relevant documents and other materials necessary for investigation is a provision that allows the members or employees of each election commission to investigate the facts of the relevant suspicion and to detect the election crimes and collect the relevant evidence. Thus, the "related person who becomes the other party to the request for questioning, investigation or submission of materials" under the above provision includes both the person who knows or appears to know the relevant suspicion and the person who possesses the materials related to the relevant suspected facts, and is not excluded from such suspicion.

[2] The Act on the Election of Public Officials and the Prevention of Election Malpractice does not have a penal provision for a person who refuses to comply with an inquiry and investigation by the members and employees of the Election Commission under Article 272-2(1). However, Article 256(4)12 of the Act only provides a penal provision for a person who interferes with entry or fails to comply with a request for submission of materials, or submits false materials (amended by Act No. 6265 of Feb. 16, 200 only provides a penal provision for a person who interferes with entry or fails to comply with a request for submission of materials). A person who fails to comply with a request for submission of materials under Article 272-2(1) of the Act is a person who has received a request for submission of materials under Article 272-2(1) and fails to submit them despite being in possession of the pertinent materials.

[3] The case holding that when a person scheduled to join the National Assembly member who is not a member of the Saemaul Council is present at the time of an election campaign period, the chairperson of the Saemaul Council shall conduct daily personnel affairs for all the participants, and the president of the Saemaul Women's Association concurrently conducts personnel affairs on his/her side, there is a reasonable ground to suspect that his/her act constitutes a violation of the election campaign period

[1] Articles 18(2) and 272-2(1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Articles 256(4)12 and 272-2(1) and (3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [3] Articles 18(2), 58(1) and 272-2(1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election

Defendant

Prosecutor

Attorney Kwon Soon-il

Busan High Court Decision 2000No708 delivered on December 14, 2000

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the grounds of appeal.

1. The summary of the facts charged in this case is that the defendant is the president of the Saemaeul Women's Republic of Korea, and the person who was requested by the election commission's staff to submit data is required to comply with it, but (1) on February 11, 200, the Saemaul Council Chairperson's transfer and taking on February 9, 200, which was conducted at the third floor meeting room of the viewing Council on February 11, 200, with Non-Party 1 National Assembly member candidate and the defendant together with the attending participants in this case, and he was suspected of being engaged in advance election by inducing them to support the above Non-Party 1 during the year, and without justifiable reasons, he did not comply with the request by the election commission for submission of explanatory materials on the invitation and support of Non-Party 1 by February 3 of the same year.

2. The court below interpreted that "related persons who are obligated to submit data among the provisions of Article 272-2 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election (hereinafter "the Public Election Act") do not include the suspect himself/herself, i.e., the suspect himself/herself, and on the other hand, even if he/she includes the suspect himself/herself in the above related persons, he/she should be deemed to be guilty of the crime in order to request the related persons to submit the data. According to the records of this case, the defendant's participation in the election crime at the entrance of the head of the Saemaul Association of February 9, 200, which was carried out on February 9, 200, is close to the candidate for the non-indicted 1 National Assembly member, and even though he/she was aware that he/she had engaged in personnel affairs, it is insufficient to recognize that the defendant was guilty of the crime of violation of the election campaign period by carrying out a prior election campaign for non-indicted 1.

3. However, we cannot agree with the judgment of the court below for the following reasons.

A. The provision of Article 272-2 (1) of the Official Election Act provides that the members and employees of each election commission may enter the relevant place to ask questions to the person concerned or investigate the relevant facts, or request the submission of the related documents and other materials necessary for investigation, in case where there is a suspicion of election crimes by the members and employees of each election commission. Since the purpose of the provision is to enable the members and employees of each election commission to investigate the facts of the suspicion and detect the election crimes and to collect the relevant evidence, the "interested person who becomes the other party to the request for questioning, investigation or submission of materials" in the above provision does not include all the persons who know or are likely to know the relevant suspicion and those who possess the materials related to the facts of the suspicion, and do not exclude them from the said

B. The Public Election Act does not have a penal provision against a person who refuses to comply with the above questions and investigation. However, Article 256(4)12 of the Act only provides a penal provision against a person who interferes with entry or fails to comply with a request for submission of materials, or a person who submits false materials (Article 256(3)12 of the Act prior to amendment by Act No. 6265 of Feb. 16, 200 only has a penal provision against a person who interferes with entry or fails to comply with a request for submission of materials). A person who fails to comply with a request for submission of materials under Article 272-2(1) of the Act is a person who has received a request for submission of materials under Article 272-2(1) and fails to submit them despite having the said materials

C. An election campaign in the official election law refers to an act to be elected or to be elected or not to be elected (Article 58(1)), and if Nonindicted Party 1, who is a candidate for a National Assembly member, is not a member of the Saemaul Council when the period of the election campaign is not, notwithstanding that it is not a member of the Saemaul Council, he/she shall attend the meeting of the Saemaul Council Chairperson and be held daily personnel at the entrance of the Saemaeul Council and conduct daily personnel affairs to all the participants, and if the Defendant was engaged in personnel affairs together on his/her next side, there is considerable reason to believe that the employee of the Election Commission who observed the election campaign and the Defendant’s act constitute a violation of the

4. Nevertheless, the court below interpreted that the related person under Article 272-2 (1) of the Official Election Act does not include the suspect himself, while judged that the above act of the non-indicted 1 and the defendant alone does not recognize the criminal of election crime, and sentenced the defendant not guilty, there is an error of law by misunderstanding the legal principles on the legal principles on the election campaign under Article 272-2 (1) of the Official Election Act and the election campaign. The argument on this point is justified.

Therefore, the judgment of the court 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 Lee Han-gu (Presiding Justice)