The meaning of the act of hindering the freedom of intra-party competition by means of deception, deception or other fraudulent means under Article 237(5)2 of the Public Official Election Act and the meaning of the “opportune of intra-party competition”

Article 237(5)2 of the Public Official Election Act provides that “a person who obstructs the competition campaign or traffic or obstructs the freedom of the intraparty competition by means of deception, trick or other unfair means” shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 10 million won. Here, “a interference with the freedom of the intraparty competition” refers to an act that obstructs the competition campaign or traffic, that is, an act that directly obstructs the competition campaign or the traffic, and “a freedom of the intraparty competition” refers to an act that directly obstructs the competition campaign or the traffic. Meanwhile, “the freedom of the intraparty competition” in the freedom of the intraparty competition refers to an act that interferes with the elector’s voting or the freedom of the intraparty competition, including the “right of the intraparty competition” and the freedom of the intraparty competition. Meanwhile, “the freedom of the intraparty competition” refers to an act that interferes with the elector’s voting against a person who has no right to vote in connection with the intraparty competition, barring any special circumstance.

Article 237(5)2 of the Public Official Election Act

[Plaintiff-Appellant] 2008Do2737 decided July 10, 2008 (Gong2008Ha, 1208)

Defendant

Prosecutor

Gwangju High Court Decision 2015No339 decided September 24, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 237(5)2 of the Public Official Election Act provides that “any person who obstructs the competition campaign or traffic or obstructs the freedom of the intra-party competition by means of deception, deception or other unfair means” shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 10 million won. Here, “any act impeding the freedom of the intra-party competition” refers to any act corresponding to impeding the competition campaign or traffic, that is, any act directly impeding the competition campaign or voting, and “the freedom of the intra-party competition” refers to “the freedom of the intra-party competition” including “the freedom of voting and the freedom of the intra-party competition” in the intra-party competition for the election of a candidate (see Supreme Court Decision 2008Do2737, Jul. 10, 2008). Meanwhile, “the freedom of voting of the intra-party competition” in the freedom of the intra-party competition refers to any act that an elector does not infringe upon the freedom of the intra-party competition by means of deception or other unlawful means. Therefore, even if there are no special circumstances leading to any elector’s voting.

2. The first instance court found the Defendant not guilty of the part of the facts charged in the instant case of violation of the Public Official Election Act, on the ground that, even if the Defendant made a vote against Nonindicted 2, who is the proportional representative candidate in the ○○○○○○○○ Party’s general proportional representative online competition by stealing Nonindicted 1, Nonindicted 1 did not have any awareness of the fact that he did not have the right to vote in his name, and thus, the Defendant’s act is limited to the degree of causing abstract danger that impedes the freedom of the intraparty competition, and it cannot be deemed that the Defendant’s act does not directly interfere with the freedom of non-party 1’s voting itself. Furthermore, on the grounds as stated in its reasoning, the lower court determined that it is difficult to view that the Defendant’s act was interfered with the freedom of non-party 1’s voting, and rejected the prosecutor’s appeal disputing this issue and upheld the first instance judgment.

Examining the reasoning of the lower judgment in light of the record, the lower court’s determination may be deemed based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the obstruction of freedom of election under Article 237(5)2

3. Meanwhile, although the prosecutor filed an appeal against the convicted portion of the judgment of the court below, there is no indication in the petition of appeal as to the grounds of appeal nor any statement in the grounds of appeal as to the grounds of appeal.

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

Justices Ko Young-han (Presiding Justice)