2019Guhap5100 Return of deposits and the amount of preservation expenses due to the invalidation of election.

Action for Revocation

A

소송대리인 법무법인 @@

Attorney**

The Chairperson of the Ulsan Metropolitan City Election Commission

소송수행자 ##, $s

October 31, 2019

December 12, 2019

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by the plaintiff.

Defendant 50,007,000 won and preservation expenses incurred in relation to the Plaintiff’s invalidation of election on October 16, 2018

377,805,538 original disposition of return shall be revoked.

1. Details of the disposition;

A. On June 2, 2010, Plaintiff was elected to the Superintendent of the Office of Education in Ulsan Metropolitan City(hereinafter referred to as the " Superintendent of the Office of Education in 2010") which was implemented on June 2, 2010, and served as the superintendent of education from July 2010 to June 2014, and thereafter, on June 13, 2014, Plaintiff was elected to the election of the Superintendent of the Office of Education in Ulsan Metropolitan City(hereinafter referred to as the "election of the Superintendent of the Office of Education in 2014") and held office as the office of education in Ulsan Metropolitan City from July 2014.

B. Around July 30, 2010, Defendant 49(1)1 of the Local Education Autonomy Act (hereinafter “Education Autonomy Act”) and Articles 57(1) and (2) and 122-2(1) of the Public Official Election Act

In 2010, the Plaintiff, an elected person at the Office of Education, returned KRW 50,07,00, and paid the amount of preservation expenses as KRW 415,458,530. On January 10, 2018, the Busan High Court rendered a false statement of evidential documents and made a false statement of accounts in the process of election at the Office of Education in Busan High Court on January 10, 2018, and was sentenced to a fine of KRW 2 million due to the fact that Article 50 of the Education Autonomy Act was violated Article 49(1) and Article 49(2)6 of the Political Funds Act (Article 2017No277 of the Political Funds Act). The Plaintiff appealed against the above judgment and appealed to the Supreme Court (Supreme Court Decision 2018Do1715, Apr. 20, 2018), thereby dismissing the judgment of the Supreme Court on KRW 200,000.

In 2010, the election of the superintendent of the Office of Education was invalidated (Article 264 of the Public Official Election Act).

E. Accordingly, on October 16, 2018, the Defendant notified the Plaintiff of the refund of KRW 50,00,000 to the Plaintiff pursuant to Article 265-2(1) and (2) of the Public Official Election Act, and KRW 37,652,992, excluding KRW 37,652,992, out of the election expenses preserved by the Plaintiff (i.e., KRW 415,458,530 - KRW 37,652,992) (hereinafter “instant disposition”).

【Grounds for Recognition】

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The first argument is to be cancelled for the following reasons. 1) The first argument

At the time when the plaintiff was sentenced to a fine of one million won or more due to the crime of violating Article 49 of the Political Funds Act, the term of office of the Ulsan Superintendent of the Office of Education according to the election of the Superintendent of the Office of Education in 2010 expires, and the election of the superintendent of the Office of Education in 2010 was not invalidated pursuant to Article 264 of the Public Official Election Act. Therefore, the plaintiff's election of the superintendent of the Office of Education in 2010 cannot be deemed null and void pursuant to Article 264 of the Public Official Election Act. Thus, the plaintiff does not constitute "the person who should return the deposit money returned and the election expenses compensated" returned under Article 265-2 (1) of the Public Official Election Act. 2) The second argument is not the person who

Even if the Plaintiff’s election of the Superintendent of the Office of Education in 2010 becomes null and void due to the crime of violation of Article 49 of the Political Funds Act, it would excessively limit Plaintiff’s property rights and violate the principle of proportionality and the principle of protection of trust. 3) The third assertion that Plaintiff’s disposition to return the entire amount of the Plaintiff’s deposit and preserved election expenses returned to the Plaintiff even after the expiration of the term of office of the Plaintiff’s superintendent of education in 2010.

The Defendant’s right to request the return of the Defendant’s deposit and election expenses compensation against the Plaintiff has expired five years after the expiration of the extinctive prescription period (Article 96(1) of the National Finance Act) from the time when the Defendant’s deposit and election expenses are paid to the Plaintiff.

B. Determination

1) Determination on the first argument

In full view of the legislative purport of the Public Official Election Act and the following circumstances revealed in the holding of this case, the term "candidate" in Article 264 of the Public Official Election Act means a person who has won an election, and does not mean only the person who has held his/her term of office after being elected. Therefore, even if the term of office of the Superintendent of the Ulsan Superintendent of the Office of Education for 2010 has already expired as at the time the plaintiff was sentenced to a fine of one million won or more, which is the invalidation of the election due to the crime of violation of Article 49 of the Political Funds Act, even if the term of office of the Superintendent of the Office of Education for 2010 has already expired due to the election of the Superintendent of the Office of Education for 2010 under Article 264 of the Public Official Election Act, the plaintiff's first argument

(1) Article 264 of the Election of Public Officials Act provides that "If an elected person is sentenced to imprisonment or a fine exceeding one million won on account of committing a crime prescribed by this Act or a crime prescribed in Article 49 of the Political Funds Act in the election concerned, the relevant election shall be invalidated, and the relevant election shall not be separately prescribed."

In addition, the legislative purport of the above provision is to ensure that elections under the Constitution and the Local Autonomy Act are held fairly in accordance with the free will of the people and democratic procedures by nullifying the election even if the election was held harshly elected, and to prevent any malpractice related to the election, thereby contributing to the development of democratic administration (see, e.g., Supreme Court Order 96Hu111, Jun. 28, 1996; Supreme Court Decision 2003Do778, Mar. 28, 2003); and the term of office of the elected person stipulated in Article 264 of the Public Official Election Act is limited to the elected person who is under his/her term of office when interpreted "the elected person" as the elected person who is under his/her term of office, even if he/she intentionally delays the progress of criminal trials against this political law, thereby preventing the elected person from being invalidated due to the failure of his/her term of office after the date on which the judgment was made, and thus, the above provision refers to a person whose term of office expires regardless of the purpose and purpose of the election.

(2) If the invalidation of an election is deemed to vary depending on the expiration of the term of the elected person, it would result in an unfair conclusion that the repayment of the deposit and the compensated election expenses varies depending on the contingency circumstances in which the final conviction against an offense violating Article 49 of the Political Funds Act becomes final and conclusive after the expiration of the term.

③ The provisions of Article 265-22 of the Election of Public Officials Act provide that those who are not elected and who have become final and conclusive, and who have resigned before the final and conclusive judgment after indictment, shall also return the returned deposit money and the preserved election expenses.

However, in essence, there is no reasonable ground to view different from each other, inasmuch as: (a) a person who was elected to an election for public office but whose term of office expires before the final and conclusive judgment that sentenced the invalidation of the election even though the election was elected, and a person who was elected before the final and conclusive judgment that sentenced the invalidation of the election after indictment was not elected even after the election was elected; and (b) a person who was in office before the final and conclusive judgment that sentenced the invalidation of the election becomes final and conclusive after indictment was not elected; and (c) there is no reasonable ground to view different from each other. Therefore, if the elected person who was resigned before the final and conclusive judgment that held the election after prosecution is returned due to the final and conclusive judgment that held the invalidation of the election, the deposit money and the compensated election expenses that were returned to the elected person whose term of office expires before the final and conclusive judgment that held the invalidation of the election, should also be returned,

The legislative purpose of Article 265-2 of the Public Official Election Act is to restrain election crimes and establish a fair culture by imposing strong sanctions on those who have committed an election crime. It can be an appropriate means to achieve the legislative purpose to re-return deposits and election expenses that have already been returned to the winner who has been sentenced to imprisonment at least a certain degree due to election crimes. In the case of an election crime, it is basically a matter of determining what kind of punishment should be imposed for the person who has been sentenced for any specific crime, and it is also a matter of determining the legislative purpose. The standard of imposing a fine of at least 10,000 won, which is the basis of these sanctions, should not be deemed as having been excessive because it means the sentence of the court, which reflects the reasons for sentencing as stipulated in Article 51 of the Criminal Act, and there is no reason to believe that the standard of imposing an election campaign is beyond the bounds of the principle of imposing an election campaign for the purpose of election campaign.

If a type of invalidation of election against a public official whose term of office expires becomes final and conclusive, the public official’s property right should be restricted if the deposit and the remaining election expenses are to be returned. However, the purpose is to guarantee the important public interest, such as the freedom and fairness of this election, and to guarantee the fairness of the election, as to a violation of the election statutes that impair the fairness of election, there is a need to block the possession of illegal elections by imposing sufficient sanctions to guarantee the exercise of the political right, which is the process of formation and expression of the sovereign citizen, and to strengthen sanctions against illegal election in order to establish a fair election culture, it is difficult to view that it is an excessive regulation to require a public official whose term of office has expired to return the deposit and the remaining election expenses. Moreover, it is difficult to deem that Defendant A’s term of office has expired for the Plaintiff in accordance with the election of the Superintendent of an Office of Education in 2010.

There is no evidence to acknowledge the fact that the Plaintiff expressed his public opinion that he would not demand the refund of the deposit and the remaining election expenses even in cases where a form of invalidation of the election campaign against the Plaintiff Plaintiff was finalized due to the election campaign. Article 265-2 of the Public Official Election Act explicitly provides that the deposit and the remaining election expenses shall be returned in full in cases where the invalidation of the election against the elected person becomes final and conclusive. Thus, the Defendant cannot be deemed to have violated the principle of trust protection on the ground that the Defendant sought the refund of the full deposit and the remaining election expenses after the expiration of the term of office of the Plaintiff.

C) Therefore, the judgment on the third argument by the Plaintiff is without merit. 3) The third argument by the Plaintiff is without merit.

The extinction prescription begins from the time when an objective right arises and the right can be exercised (Article 162 of the Civil Act) and can not proceed from the time when the right can not be exercised. According to Article 265-2 of the Public Official Election Act, the Defendant can demand the Plaintiff to return the deposit money and the preserved election expenses only when the Plaintiff becomes final and conclusive when the invalidation of election becomes final and conclusive. As such, the extinctive prescription of the deposit money and the preserved election expenses refund claim runs from the time when the judgment becomes final and conclusive.

As examined earlier, the Plaintiff’s fine of KRW 2 million for the crime of violation of Article 49 of the Political Funds Act against the Plaintiff was finalized as the Plaintiff’s final appeal was dismissed on April 20, 2018, and thus, it is apparent that the instant disposition taken on October 16, 2018 was a disposition before the expiration of the effective period when the right to claim the refund of deposits and the preserved election expenses expires. Therefore, the Plaintiff’s third assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Gangwon-do;

Judges Lee Jae-py

Judge Lee Jong-soo

1) Provisions applicable mutatis mutandis to the Public Official Election Act

2) A person whose election is invalidated under Articles 263 through 265 of the Election of Public Officials Act (the return of expenses by a person whose election is invalidated) (1)

person who has resigned before the judgment after prosecution becomes final and conclusive, and who has not been elected, shall be himself as provided in articles 263 to 265; and

(1) A person whose election has become final and conclusive due to crimes such as the head of an election affairs office, etc. shall return the amount returned and preserved pursuant to Articles 57 and 122-2.

The party-recommended candidate for the presidential election shall be returned by the political party which has recommended the presidential election, and proportional representative local council members and proportional representative local council members.

In the case of an election of a member, when the election of a candidate becomes invalid all, the political party which has recommended the election shall return it.