[1] Whether the intra-party competition, which requires any party member and any person who is not a party member, to express his/her intention to choose who is to become a candidate for the election among the candidates for the intra-party competition, falls under “Intra-party competition held by giving voting right to the party member and any person who is not a party member” as provided by Article 57-3(1) of the Public Official Election Act (affirmative), and whether the method of exercising voting right in this case includes whether it is restricted by the method of recording on the ballot paper (negative) and whether it also includes the method of expressing such choice through the public opinion poll

[2] The meaning of "persons related to the competition campaign" under Article 230 (7) 2 of the Public Official Election Act

[3] The meaning of "the relevant election day", which is the initial date of the statute of limitations under the main sentence of Article 268 (1) of the Public Official Election Act (=the voting date of an election for public office directly related to the election crimes), and in cases where the election crime is a violation of the Public Official Election Act concerning the campaign for the intraparty competition, the initial date of the statute of limitations for the election

[1] Articles 57-2, 57-3(1), 108(1) and (2), 146(1), 147, 150, 151, 159, and 255(2)3 of the Public Official Election Act / [2] Articles 135, 230(1)1, 230(1)4, 230(7)1 and 2 of the Public Official Election Act / [3] Article 268(1) of the Public Official Election Act

[1] Supreme Court Decision 2006Do8869 Decided March 15, 2007 (Gong2007Sang, 585) Supreme Court Decision 2008Do6232 Decided September 25, 2008 (Gong2008Ha, 1511) Supreme Court Decision 2012Do12172 Decided May 9, 2013 (Gong2013Sang, 1061) / [2] Supreme Court Decision 2006Do8134 Decided June 1, 2007 (Gong2007Ha, 1033) / [3] Supreme Court Decision 2006Do3026 Decided August 25, 2006

Defendant 1 and two others

Defendant 1, Defendant 3, and Prosecutor

Law Firm, Kim & Lee LLC et al.

Daegu High Court Decision 2019No106 decided June 13, 2019; Daegu High Court Decision 2019No106 decided June 20, 2019

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

The grounds of appeal are examined.

1. As to the prosecutor's grounds of appeal

A. Article 57-2 of the Public Official Election Act provides that where a political party conducts a competition campaign (including a public opinion poll substituting the intra-party competition conducted by giving additional points, etc. to women or disabled persons) to recommend candidates for the intra-party election, i.e., the political party may recommend candidates for the intra-party election, and where a political party conducts a intra-party competition (including a public opinion poll substituting the intra-party competition conducted by giving them additional points, etc. according to the party constitution and regulations) , anyone who is not elected as a candidate for the same constituency of the relevant election may not be registered as a candidate for the intra-party competition. Article 57-3(1) provides that the intra-party competition campaign cannot be conducted by giving the right to vote for the party members and non-party members by means other than those falling under any of the following subparagraphs, and limits the method of the intra-party competition campaign for the intra-party competition campaign which is conducted by 200 or more than the 20-party competition campaign (see Supreme Court Decision 2008Do1272, May 9, 2013).

The Public Official Election Act does not have a definition on voting or public opinion poll. The prior definition of voting is to pay in a certain place with the consent of the members or opposition to a certain matter, or with the intention of expressing an intention in a ballot paper. The Public Official Election Act prescribes that the method of voting should be put in the ballot paper and establishes a polling station with respect to an election for public office, and limits the provision on the ballot paper and ballot boxes (Articles 146(1), 147, 150, 151, and 159), but there is no restriction on the voting method for the intra-party competition. Accordingly, there is sufficient means that the method of voting for the intra-party competition should be put in the ballot paper, and there is sufficient means that a specific person among the candidates for the intra-party competition should be a candidate.

Article 108(1) and (2) of the Public Official Election Act does not provide a separate definition provision for public opinion poll, but does not stipulate that public opinion poll is included in the intra-party competition by allowing public opinion poll using a method similar to that for a single vote or a seal vote under certain restrictions, or a similar model of ballot (Article 108(1) and (2)). In addition, it is possible to substitute intra-party competition through public opinion poll and in certain cases, it is also included in the intra-party competition (Article 57-2(2)).

In full view of the contents of the above provisions and the legislative purport of restricting the intra-party competition campaign, the intra-party competition where political parties require members and non-members to express their intent to choose who is to become a candidate for the election among the candidates for the intra-party competition falls under the “party competition conducted by granting voting rights to party members and non-party members,” as provided by Article 57-3(1) of the Public Official Election Act, and the method of exercising voting rights is not always restricted by the method of marking on ballot papers, and barring any special circumstance, it shall also be deemed that the aforementioned method of expressing their intention of choice through the public opinion poll method is also included.

B. The lower court determined as follows.

1) Under Article 57-3 of the Public Official Election Act, the primary election that limits the competition campaign method constitutes only the primary election that grants voting rights to the party members and those who are not the party members, and does not fall under the primary election that conducts public opinion polls without granting voting rights to those who are not the party members.

2) The intra-party competition for the election of ○○○○○○○ Party candidate in the 7th nationwide local election in 2018 (hereinafter “instant intra-party competition”) was conducted by adding 50% of the vote of the responsible party members and 50% of the general △△ citizen’s opinion poll, and did not hold a competition by granting the right to vote to those who are not members, and thus, does not constitute the intra-party competition that restricts the competition campaign method under Article 57-3 of the Public Official Election Act.

Therefore, among the facts charged in the instant case, the violation of the Public Official Election Act due to the violation of the primary election campaign method constitutes a crime.

C. However, examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court erred by misapprehending the legal doctrine on “party competition for which a political party grants voting rights to persons who are not party members and party members,” and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

The reasons are as follows.

1) This part of the facts charged is that “Nonindicted Party established and operated a similar election campaign office prior to the competition campaign period for the purpose of conducting the competition campaign in relation to the instant intra-party competition, and the Defendants recruited the number of persons to help the Nonindicted Party to vote in the said intra-party competition in order to raise the mobile profit ratio of the Nonindicted Party in the said intra-party competition, or assisted the voting procedure by finding members who are not well aware of the mobile voting method among the members of the responsible party.”

2) However, the instant intra-party competition was conducted by reflecting 50% of the voting for all the responsible members and the public opinion poll for the general △△△ citizens (the size of 3,000 marks) respectively, based on the results, and recommended candidates according to the results. Public opinion poll conducted by a public opinion poll institution for two days from April 7, 2018 to April 8, 2018 using data on virtual phone numbers provided by a mobile phone number company, thereby making a telephone call for two days from April 7, 2018 to “whether it is deemed reasonable to keep the following out of the list as a candidate for the ○○○○○○ △△△△ Party” and each candidate’s representative career and name was notified.

3) According to the above factual relations, the instant intra-party competition constitutes a “party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party]

2. As to Defendant 1’s ground of appeal

A. As to the requirements of Article 230(7)2 of the Public Official Election Act

1) The Public Official Election Act separates the intraparty competition for the election of public officials and the recommendation of the political party. The purpose, object, act, etc. to regulate the public official election and the intraparty competition are also different from each other. However, in light of the scope of counter-party under each of Article 230(1)1 and 4 of the Public Official Election Act, which is the provision on the public official election, and the specific contents and method of expression, such as the scope of counter-party, whether a specific purpose is required, the mutual relationship between each of the regulations, and other penal provisions, the "persons related to the intraparty competition" under Article 230(7)2 of the Public Official Election Act shall be interpreted as referring to a person who is widely engaged in the intraparty competition or who is in charge of affairs related to the intraparty competition (see, e.g., Supreme Court Decision 2006Do8134, Jun. 1, 207).

2) Based on its stated reasoning, the lower court determined that the persons who received money and valuables from Defendant 1 were actually involved in the intra-party competition campaign by promoting the election of the non-indicteds in the intra-party competition and constituted “persons related to the intra-party competition” under Article 230(7)2 of the Public Official Election Act.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment 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 meaning of “persons engaged in light of the competition campaign” as provided by Article 230(7)2 of the Public Official Election Act,

4) Meanwhile, the assertion that at the time of the instant crime, there was no “the purpose of being elected as a candidate or having the competition elector cast a vote,” or that there was no public offering of money and valuables with the Nonindicted Party, etc., as prescribed by Article 230(7)2 of the Public Official Election Act at the time of the instant crime, cannot be deemed a legitimate ground for appeal on the ground that Defendant 1 asserted as the grounds for appeal at the lower court, or asserts matters that were not tried ex officio by the lower court (see Supreme Court en banc Decision 2017Do16593-1, Mar. 21, 2019

B. As to the initial date of the statute of limitations for the crime related to the intraparty competition

The main text of Article 268(1) of the Public Official Election Act provides, “The prescription of a public prosecution against any crime under this Act shall expire six months after the relevant election day (six months after the date of the relevant act in the case of a crime committed after the election day).” The term “relevant election day” refers to the voting day for an election for public office directly related to the relevant election crime (see, e.g., Supreme Court Decisions 2006Do3026, Aug. 25, 2006; 2019Do2767, May 30, 2019). This provision applies to a case where an election crime is a violation of the Public Official Election Act relating to the intraparty election campaign. As such, the initial date of the prescription of a public prosecution against such election crime is not the date of the intraparty election, but the voting day for an election for public office directly related to such election crime.

The lower court determined that the expiration date of the statute of limitations in the instant case was six months after June 13, 2018, the election date for public office. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court did not err by misapprehending the legal doctrine on the initial date of the statute of limitations in Article 268(1) of the Public Official Election Act.

3. As to Defendant 3’s appeal

Defendant 3 did not submit the appellate brief within the deadline for submitting the appellate brief, and there is no statement in the petition of appeal the grounds for objection.

4. Scope of reversal

For the foregoing reason, the part of the judgment of the court below as to Defendant 1 and Defendant 3’s acquittal and the part as to Defendant 2 should be reversed. However, the part of the judgment of the court below as to Defendant 1 and Defendant 3’s acquittal is in a concurrent crime relationship under the former part of Article 37 of the Criminal Act with the conviction as to Defendant 1 and Defendant 3, and thus, the judgment of the court below should be reversed in its entirety. Accordingly

5. 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 Young-soo (Presiding Justice)