[1] Whether it constitutes an election campaign to appeal for support to a candidate-to-be individual in soliciting admission to an elector (affirmative)

[2] Whether Article 106 (1) of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts applies only to door-to-door visits during the election campaign period (affirmative)

[1] The introduction of the party platform, policy or member of a political party to the elector's admission to the elector is included in ordinary political party activities. However, the appeal for support to a specific candidate individual beyond this scope constitutes an election campaign in light of the criteria of the Constitutional Court precedents.

[2] Where a door-to-door visit was made for an election campaign prior to the election campaign period, but no actual election campaign is made, it shall be interpreted that Article 106(1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election is in violation of the language. However, in such interpretation, where a door-to-door visit was actually made prior to the election campaign period and an election campaign was actually carried out prior to the election campaign period, compared to falling under Article 254(2)5 of the same Act, where only a door-to-door visit was made before the election campaign period, and where an election campaign was not actually carried out, it is reasonable to interpret Article 255(1)16 and Article 106(1) of the same Act as being subject to the heavier punishment of imprisonment with prison labor for not more than three years or a fine not exceeding 6 million won, regardless of the absence of any further progress in the election campaign period. Therefore, it is reasonable to limit only a door-to-door visit during the election campaign period.

[1] Article 58 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Article 106 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election

[1] Constitutional Court Order 93HunGa3, 7 decided July 29, 1994 (HunGong1994, 489)

Defendant 1 and two others

Defendant 1 and Prosecutor

Attorney Kim Jong-sung

Chuncheon District Court Decision 96Gohap10 delivered on August 28, 1996

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1 and his defense counsel

(1) misunderstanding of facts or misapprehension of legal principles

Defendant 1’s act does not constitute an election campaign in accordance with the principle of no punishment without law, inasmuch as there is no explicit provision that such act constitutes an election campaign, even if the other Defendants complained of support for the best sense in the process of receiving the application forms for joining the Republic of Korea, Defendant 1’s act does not constitute an election campaign. Nevertheless, the judgment of the court below which found Defendant 1 guilty of the facts charged against Defendant 1 by misapprehending the legal principles or by misapprehending the legal principles that affected the conclusion of the judgment.

(2) Unreasonable sentencing

Even if the facts charged are found guilty, since the nature of the crime is not a bad and is formally acceptable, the sentencing of the court below, which is sentenced to the fine of 2 million won in which the eligibility for election is restricted, is too unreasonable.

(b) Swords;

(1) misunderstanding of facts or misapprehension of legal principles

According to the statement of a copy of the daily inspection activity conducted by the court below adopted as evidence, all of the parts which the court below acquitted the defendant. Even if the defendant 2, 3 and 23 members of the non-party female (hereinafter defendant 2, 3 et al.) received only the application forms for joining the country and did not speak in the lake and marsh for support, etc., the act of collecting the application forms of door-to-door visit and the application forms for joining the country in this case comprehensively takes place under the purpose of election campaign, so it constitutes a "house-to-door visit for election campaign" prohibited by Article 106 (1) of the Public Official Election and Prevention of Unlawful Election Act (hereinafter "Public Election Act"). Therefore, the court below erred by misapprehending the facts or by misapprehending the legal principles that the court below acquitted the defendant on the ground that there was no explicit

(2) Unreasonable sentencing

In light of the fact that there is no color that the Defendants were repented by the prosecution during the course of the investigation, such as inducing the candidates for the opposition party, and making a false statement, etc., the sentencing of the lower court, at least 2 million won, 2,000 won, 2, and 3 of the fines, which is sentenced to 50,000 won by each of the defendants 1, is unreasonable.

2. Determination:

A. As to Defendant 1 and his defense counsel's assertion of mistake or misapprehension of the legal principle

According to the evidence adopted by the court below through legitimate examination of evidence, it is sufficient to recognize the fact that Defendant 1 received the application form for joining by door visit and door visit Defendant 2, 3, etc. to support the best sense by informing the electorate of his best sense and introducing his political views.

Meanwhile, Article 254 (2) 5 of the Election Campaign Act, which applies to the instant case, provides that "any person who conducts or makes another person conduct an election campaign at a door-to-door visit" shall be punished. Thus, "election campaign" shall be the constituent elements of the relevant crime. However, "election campaign" in Article 58 (1) of the Election Campaign Act means any act to be elected or not to be elected: Provided, That a simple statement of opinion or intention, an act to prepare for an election campaign or an ordinary political party activity shall not be deemed an election campaign." Defendant 1's assertion is clearly distinguishable from "an act to be elected or not to be elected" and "an act to be elected or not to be elected" in Article 58 (1) of the Election Campaign Act and "an act to be elected or not to be elected" from "an act to be elected or not to be elected" shall be deemed to be an act to be an act to be subject to the general standards of election campaign under Article 98 (1) of the Election Campaign Act or to the overall provision of the Constitutional Court Regulations for Election Campaign Act.

Therefore, Defendant 1 and his defense counsel's assertion of mistake or misunderstanding of legal principles is without merit.

B. As to the prosecutor's assertion of mistake or misapprehension of legal principles

Unlike Article 255(1)16 of the Official Election Act, which provides that "No person shall enter door to door for election campaign or for soliciting admission during the election campaign period." Unlike Article 255(1)16 of the Official Election Act which provides that "No person shall enter door to door for election campaign or for soliciting admission during the election campaign period." Article 254(2)5 of the Official Election Act which provides that "the person who visits door to door or has made another person visit to door shall be punished." Thus, in the case of Article 255(1)16 of the Official Election Act, "the person who visits door to door to door for election campaign or has another person do so," the applicable provisions of the facts charged of this case shall be punished. Therefore, in the case of Article 255(1)16 of the Official Election Act, the elements of an election campaign shall be satisfied even if the person did not actually engage in an election campaign, but in order to meet the requirements of Article 254(2)5 of the Official Election Act.

However, in cases where a door-to-door visit was made for an election campaign prior to the election campaign period, but no actual election campaign is made, it is interpreted that Article 106(1) of the Official Election Act is in violation of the language and text. However, in such interpretation, where an election campaign is carried out by door-to-door visit prior to the election campaign period, it falls under Article 254(2)5 of the Official Election Act and is subject to imprisonment with prison labor for not more than two years or a fine not exceeding four million won. However, if only a door-to-door visit was made before the election campaign period and the election campaign is not actually carried out, it is reasonable to interpret that Article 255(1)16 and Article 106(1) of the Official Election Act applies only to the door-to-door visit during the election campaign period, notwithstanding the absence of any further sentence. Therefore, Article 106(1) of the Official Election Act applies only to the door-to-door visit during the election campaign period.

Thus, as in this case, only door-to-door visits were made prior to the election campaign period, and the election campaign is not actually subject to punishment.

However, according to the defendants' statements and a copy of the daily inspection activity log adopted by the court below as evidence, defendant 1 appealed to the defendants 2, 3, etc. by introducing them to the electorate and introducing them to the best manner and informing his political views, etc., but education was conducted in order to prevent the other party from resisting support for the best manner if the other party seems to be hostile, and accordingly, the defendant 2, 3 et al. appealed to support the best manner according to the response of the other party and omitted.

Therefore, it is insufficient to acknowledge that there was an election campaign act, such as filing a petition for support for the best judgment, on the part of the above daily inspection date alone, which was acquitted in the lower court, and there is no other evidence to prove otherwise, and the lower court did not err by misapprehending the legal doctrine

C. As to Defendant 1’s defense counsel and prosecutor’s assertion of unreasonable sentencing

In light of the fact that the Defendants organized and recruited the Defendants to enter the same district and carried out an election campaign in advance, the punishment of the lower court is appropriate, and the sentencing of the Defendants is too heavy or unreasonable, in view of the fact that the Defendants were prosecuted even though they did an act similar to other parties in the same district, and that the Defendants’ act does not have any different influence on the result of the election, as the best candidate was falling short of the election.

3. Conclusion

Therefore, the appeal by the defendant 1 and the prosecutor is without merit, and it is so decided as per Disposition.

Judges Lee Yong-deok (Presiding Judge)