[1] The meaning of "a person in the relevant constituency" and "a person who has relations with the elector" under Article 113 (1) of the Act on the Election of Public Officials and the Prevention of Election Malpractice

[2] Whether the subject of each crime of violation of restrictions on contribution under Article 257 (1) 1 of the Act on the Election of Public Officials and the Prevention of Election Illegal Act and the person who is not recognized as the subject of each contribution act in collusion with the subject of the contribution act can be punished as a co-principal under the pertinent Act (negative)

[1] Article 113(1) of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts / [2] Articles 113, 114, 115, and 257(1)1 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts

[1] Supreme Court Decision 96Do500 delivered on November 29, 1996 (Gong1997Sang, 260) / [2] Supreme Court Decision 96Do346 delivered on June 13, 1997 (Gong1997Ha, 2088), Supreme Court Decision 97Do2249 delivered on December 26, 199 (Gong198Sang, 468)

Defendant

Prosecutor

Law Firm Hanwon, Attorneys Choi Jong-soo et al.

Busan High Court Decision 2005No512 delivered on October 19, 2005

The appeal is dismissed.

1. As to the primary facts charged

Article 113(1) of the Act on the Election of Public Officials and the Prevention of Election Malpractice (hereinafter “Public Official Election Act”) prohibits an act of contribution to the “person located in the relevant constituency” and the “person who has a relationship with the electorate even if outside the relevant constituency,” which includes not only the person who has a domicile or residence in the constituency but also the person who temporarily stays in the constituency (see Supreme Court Decision 96Do500, Nov. 29, 1996). The “person who has a relationship with the elector” includes not only the person who has a domicile or residence in the constituency but also the person who temporarily stays in the constituency (see Supreme Court Decision 96Do500, Nov. 29, 1996). The “person who has a relationship with the elector” means a person who has a personal relationship with the elector in question, such as his family, relative, workplace, workplace, superior, alumni, alumni meeting, relatives meeting, etc., and regardless of the reason for such connection.

Of the facts charged in this case, the court below affirmed the judgment of the court below that the other party to the act of donation mentioned in Nos. 2 through 10 of the annexed crime list Nos. 2 and 10 of the annexed crime list of the defendant's constituency does not constitute a person within the Dong-gu (name omitted) in Ulsan-gu (hereinafter referred to as "Dong-dong") where the other party to the act of donation does not constitute a person within the constituency of the defendant, and that he participates in various social organizations within each Dong-dong and takes part in volunteer activities, and it cannot be viewed as a person who has a relation with the defendant's elector and has a relation of blood or human nature with the defendant's elector, and it cannot be viewed as a person who has a relation with the other party to the act of donation in violation of the rules of evidence No. 2 through 10 of the annexed crime list of the defendant's primary facts charged against the defendant, or there is no evidence to find that the other party to the act of donation was an act of donation in violation of the rules of evidence No. 10.

2. On the ancillary facts charged

The crime of violation of the restriction on contribution under Article 257 (1) 1 of the Public Official Election Act is established only when the status of each limited person is established in Articles 113 (Restriction on Contribution Act by Candidates), 114 (Restriction on Contribution Act by Political Parties and Family Members of Candidates), and 115 (Restriction on Contribution Act by Third Parties) of the Act. Since a analogical interpretation cannot be conducted in accordance with the principle of no punishment without law, the act of contribution by a person without the above status does not constitute a crime of violation of each of the above provisions of the Act. Further, the separate provisions of each of the above provisions of the Act and each of the requirements for the restriction on contribution according to the person with the status of each of the persons subject to contribution, and even if a person who is not recognized as a person subject to each contribution act acted in collusion with the person subject to each contribution act, it shall not be punished as a joint principal offender of the person subject to each applicable provision of the Act.

The court below found the defendant not guilty of the preliminary charges added by the court below on the ground that the defendant's act constitutes a third party's act of donation for the candidate under Article 115 of the Public Official Election Act, since it cannot be deemed that the defendant is a local council member or a candidate in an area other than his constituency and unless he is his spouse, even if the contribution act of each local council member was made in the public invitation of the defendant, it cannot be punished for the reason that the defendant violated the provisions of Articles 257 (1) 1 and 113 (Restriction on Contribution Act) of the Public Official Election Act, and it cannot be concluded that the act of sight distribution of each local council member is a contribution act for the local council member in light of the circumstances where the name of "the defendant of the Dong Council head" is stated in the commendation of this case presented by each local council member. Thus, there is no room to see that the defendant's act constitutes a contribution act of the local council member for the candidate. In light of the above legal principles, there is no error of law by misunderstanding the facts against the rules of evidence or misunderstanding the legal principles on the joint principal offense

3. Conclusion

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

Justices Kim Ji-hyung (Presiding Justice)