[1] The scope of "duty to report and submit under this Act" under Article 261 (3) 1 of the Public Official Election Act

[2] Whether the duty to report under Article 26-2 (5) of the Rules on the Management of Public Officials Election to report under Article 261 (3) 1 of the Public Official Election Act constitutes a duty to report under Article 261 (3) 1 of the Public Official Election Act concerning the procedure for sending printed matters,

[1] Article 261(3)1 of the Public Official Election Act / [2] Articles 60-3(1)4 and 261(3)1 of the Public Official Election Act, Article 26-2(5) of the Rules on the Management of Public Official Election

Re-appellant

Seoul Western District Court Order 2005Ra12 dated October 7, 2005

The order of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of reappeal are examined.

1. The court below acknowledged that the re-appellant who was registered as a preliminary candidate for the election of the 17th National Assembly member in 2004 pursuant to subparagraph 4 of Article 60-3 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7681 of Aug. 4, 2005; hereinafter the "Public Official Election Act") submitted promotional materials of a preliminary candidate by mail until March 30, 2004, which is the day preceding the starting date of the candidate registration period, and when sending them, the promotional materials of a preliminary candidate may be sent by mail until March 30, 2004; and the promotional materials of a preliminary candidate shall be reported by the competent election commission along with two copies of promotional materials pursuant to Article 26-2 (5) of the former Rules on the Election of Public Officials (amended by the Election Commission Regulations No. 224 of Aug. 28, 2004; hereinafter the "Rules on the Election of Public Officials") but shall have violated the duty to report and manage the Election Act.

2. However, we cannot accept the above measures of the court below.

Article 261(3) of the Public Official Election Act provides that "a person who neglects the duty of report and submission as prescribed by this Act with respect to election" under subparagraph 1 shall be punished by a fine for negligence not exceeding 2 million won. This is, in principle, a provision for ensuring compliance with the duty of report and submission with respect to election under the Public Official Election Act. Thus, the specific contents of the duty of report and submission must be explicitly provided for in the Act itself. However, even if it is possible to delegate the specific contents to a subordinate law due to the necessity of delegation legislation, it may be included in the scope of "duty of report and submission as prescribed by this Act" under the above Act, which is a provision on the basis of a fine for negligence.

However, Article 60-3 subparag. 4 of the Public Official Election Act, cited by the court below, provides that "the act of sending by mail as prescribed by the National Election Commission Regulations only once before the commencing date of the candidate registration period after producing a number of printed materials within 1/10 of the number of households in the constituency (the number shall not exceed 2)" and "the act of sending by mail as prescribed by the National Election Commission Regulations," and provides for the detailed procedures under Article 26-2(2) through (6) of the Rules on the Management of Public Official Election, if a preliminary candidate intends to send promotional materials (which means printed materials as prescribed by Article 60-3 subparag. 4 of the Public Official Election Act), he/she shall attach two copies of promotional materials, preparation expenses (including preparation expenses of bags), and promotional materials, and the name, address, date and time of sending post offices, and the cost of sending them shall be reported to the competent election commission, which shall not be deemed to have the meaning of delegation of the duty to report under Article 60-3 of the Public Official Election Act."

Therefore, even if Article 26-2(5) of the Public Official Election Act provides within the scope of delegation under Article 60-3 subparag. 4 of the Public Official Election Act, it cannot be deemed that such provision constitutes “duty of report and submission as to election” under Article 261(3) subparag. 1 of the Public Official Election Act, which is the basis for administrative fines under the Public Official Election Act.

Nevertheless, the court below maintained the decision of the court of first instance that imposed a fine for negligence on the re-appellant for the reason that it is reasonable to view that the meaning of "a person who neglects the duty of report and submission as prescribed by this Act concerning election" under Article 261 (3) 1 of the Public Official Election Act includes a person who violates the duty of report and submission as prescribed by the Rules on the Management of Public Officials Election Act. Thus, the court below erred by misapprehending the legal principles on the interpretation of Article 261 (3) 1 of the Public Official Election Act, and such illegality affected the judgment.

3. Therefore, the order 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 Kim Yong-dam (Presiding Justice)