209Guhap54079, 2009, i.e., nullification of a disposition to refund deposit and election expenses.

100

Seoul Metropolitan Government Election Commission

March 31, 2010

May 14, 2010

1. The plaintiff's primary claim and the conjunctive claim are all dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

On November 10, 2009, the defendant confirmed that the return disposition of KRW 50,05, KRW 753, KRW 2,835, KRW 153, and KRW 680 against the plaintiff is null and void. The first disposition made by the defendant is revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by adding the whole purport of the pleadings to the statements in Gap evidence 1-1-2, Eul evidence 1-2, Eul evidence 2-5, and Eul evidence 3:

A. On July 30, 2008, the plaintiff was elected through the Seoul Central District Court on March 10, 2009; on July 15, 2008, the Seoul Central District Court omitted his/her spouse's deposit account and published false facts on his/her spouse's property by reporting his/her property as a candidate for the election at around the Seoul Central District Court on July 15, 2008; and on October 26, 2010, the former Local Education Autonomy Act (amended by Act No. 10046, Feb. 26, 2010; hereinafter "former Local Education Autonomy Act") Article 22 (3) (hereinafter "Article 1 (3)"); the former Local Education Autonomy Act (amended by Act No. 974, Jan. 25, 2010; hereinafter "the former Local Education Autonomy Act"); and 00 (0) (0) 10. 205).

B. Accordingly, the Plaintiff’s election was invalidated by Article 264 of the Act. On November 10, 2009, the Defendant notified the Plaintiff to refund KRW 50,05,753 of the deposit money returned to the Plaintiff pursuant to Articles 1, 265-2(1) main sentence, and 2(2)(hereinafter “instant disposition”). The Defendant notified the Plaintiff to refund KRW 2,835,153, and680 of the paid election expenses (hereinafter “instant disposition”).

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that since the provisions of Articles 1 and 2, which are the basis of the disposition of this case, are unconstitutional and invalid for the following reasons, the disposition of this case is unlawful as well as its defect is serious and obvious, the disposition of this case is null and void, and even if the family defect is not significant and obvious, the disposition of this case should be revoked as long as it is unlawful as there is such defect.

(1) The unconstitutionality of Article 1(1)

Article 1 of the Public Official Election Act provides that the provisions concerning the election of the superintendent of education shall apply mutatis mutandis to the election of the superintendent of education. This is against the principle of clarity that should be complied with in the case of legislation restricting fundamental rights under the Constitution (hereinafter referred to as "first argument") because no specific standard is presented on the subject and scope of application mutatis mutandis.

(2) unconstitutionality of Article 2(2)

(A) Violation of the regime, violation of the right to participate in public affairs, and violation of the principle of government burden for election expenses.

Article 2, regardless of the purport of the deposit system or the purpose of the National Treasury burden, in addition to the punishment that is imposed on the elected election crime by imprisonment or a fine of not less than one million won (hereinafter referred to as "the punishment that is equivalent to the invalidation of election") and the election becomes invalidated, the deposit and prepaid expenses shall be returned to another person, and the amount of the deposit and the election expenses to be returned are restricted by running for the election of public officials due to excessive amounts of the election expenses, so it is not only to limit the participation and the right to participate in public affairs under the Constitution, but also to violate the principle of the National Treasury burden (hereinafter referred to as "2-1 argument").

(B) Violation of the principle of equality

Article 2 provides that the elected person shall return his deposit and election expenses (hereinafter referred to as "deposit money, etc.") when he is sentenced to a punishment equivalent to the invalidation of election, and does not provide for the return of deposit money when the deceased person is sentenced to the same punishment. This is against the principle of equality under the Constitution, which discriminates against the elected person in an election for public office and the deceased person without reasonable grounds (hereinafter referred to as "2-2 claim").

B. Determination

(1) As to the first argument

Article 22 of the former Local Education Autonomy Act shall apply mutatis mutandis to the election of the superintendent of the Office of Education in accordance with paragraph (1). "The superintendent of the Office of Education shall select a candidate for the election of the superintendent of the Office of Education" in paragraph (2). "The political party shall not recommend a candidate for the election of the superintendent of the Office of Education", and the candidate for the superintendent of the Office of Education shall apply for registration in writing to the Si/Do Election Commission for two days from 15 days before the election day after the election day after receiving a recommendation of the elector under the Public Official Election Act, and the provisions concerning the recommendation and registration thereof shall apply mutatis mutandis to the recommendation and registration of an independent candidate under Articles 48 and 49 of the same Act.

Except as otherwise provided, the provisions of the Public Official Election Act concerning city/Do Governor election shall apply mutatis mutandis to the scope not contrary to its nature.

First, the former Local Education Autonomy Act (amended by Act No. 8069 of Dec. 20, 2006) stipulates that the provisions of the former Public Official Election Act shall apply mutatis mutandis to the election of educational members and superintendent of education in accordance with Articles 51 through 176 (Articles 140 through 161 shall be penal provisions), but it is judged that it is not necessary to establish separate provisions from the Public Official Election Act with regard to the election while converting educational members and superintendent of education into the resident election system with the amendment of the above Act, and it is not appropriate to apply the same provision to the election of superintendent. In light of the legislative history of Article 22(1) and (2) as seen above, it is difficult to apply the same provision to the effect that the provisions of the former Public Official Election Act comprehensively to the effect that the provisions of the former Public Official Election Act, other than the comprehensive provisions of the Public Official Election Act, are applied mutatis mutandis to the election of a political party with respect to the election of an educational member and superintendent of education.

Therefore, Article 22(3) of the former Local Education Autonomy Act does not violate the principle of clarity that Article 22(3) of the former Local Education Autonomy Act does not violate the principle of clarity that the content of the legal norm that restricts fundamental rights under the Constitution should be clear, on October 29, 2009 (see Supreme Court Order 407, 427, 4444, supra).

(2) 2 - 1 As to the argument

(A) Article 2 of the former Act provides that the elected person whose election is invalidated due to an election crime shall return the deposit money returned under Article 57 of the former Act and the election expenses compensated under Article 122-2 of the former Act as he has obtained a certain portion or more of the total number of valid votes.

(B) As such, Article 2 of the Public Official Election Act merely provides for the return of deposits, etc. already returned or preserved as a sanction for an unlawful act, regardless of the requirement or decision of holding an election, which is a violation of the Public Official Election Act during the election process, regardless of whether the requirements or decision of holding an election are met, it is apparent that the said provision does not in itself infringe upon the political rights and the right to participate in public affairs.

(C) The Plaintiff’s assertion that Article 2 of the former Act requires the return of a large amount of deposits already returned or compensated when the election becomes invalidated upon being sentenced to a punishment that constitutes the invalidation of election under Article 264 of the former Act. The purport of the Plaintiff’s assertion is that even if any candidate is expected to be able to enter an election for public office and to waive his/her candidate’s right to participate in the election and to have public office held by him/her infringed upon his/her candidate’s right to participate in the election as a result of concerns over the return of deposits under Article 2. Even if the Plaintiff’s argument leads to the first limitation of the right to participate in the election or the right to participate in the election, Article 2 of the Election Act is the result of the legislator’s choice that requires strong sanctions against the elected person in violation of the Election Act, and that the provision of the right to participate in the election and the right to participate in the election may not be deemed to have been established within 0-year period and 20-year period and 10-year period of the legislative purport.

The purpose of the provision is to ensure the freedom and fairness of election and to prevent election fraud by securing the transparency of election, prevent election fraud, and to enhance the integrity of public service and the trust of the people that are composed of public officials in need of high level ethics and equal neutrality corresponding to the public nature of their duties. In this case, the requirement is limited to the case where a sentence equivalent to the invalidation of election is sentenced for a crime related to election. In this case, the number of votes obtained by the elected person cannot be recognized as being the result of a serious violation of the election law and thus the legitimacy and effectiveness of election cannot be recognized. As a result, the elected person can be deemed as not meeting the requirements for return of deposits obtained at least 15/100 of the total number of valid voting stocks, or for compensating election expenses, and thus, the legislative purpose of the provision is to limit the right to receive election or to compensate for the election expenses, and its method is to limit the right to receive election, and it cannot be seen as being in violation of the basic principle of proportionality and balance.

Meanwhile, under Article 116(2) of the Constitution, there may be room for allowing a candidate to bear part of the election expenses in the case of a law, and the local government to bear all the expenses required for the election of the superintendent of the office of education cannot be necessarily appropriate in light of the local government’s tax burden or financial situation. In a case where the elected person was sentenced to a punishment for invalidation of election after an election, refund of the election expenses after the election cannot be deemed unfair in light of the local government’s tax burden or financial situation, and thus, it cannot be deemed unreasonable in light of the local government’s tax burden or financial situation. Thus, allowing a refund of the election expenses from the elected person whose election is invalidated, to be made invalid, is contrary to the principle of the

(D) Therefore, Article 2 cannot be deemed to violate the regime, the right to hold public office, or the principle of government burden for election expenses.

(3) 2 - 2 Concerning the argument

(A) The degree of examination on the violation of equality

The principle of equality under Article 11(1) of the Constitution refers to an absolute deliberation, etc. that denies all discriminatory treatments, but rather a relative deliberation, etc. that does not mean that there is no reasonable ground for discrimination. Whether the discrimination is reasonable shall be determined on the basis of whether the discrimination is necessary and appropriate for the achievement of legitimate legislative purpose, unless it is contrary to the constitutional principles that respect human dignity (see, e.g., Constitutional Court Order 94Hun-Ba5, May 297, etc.).

In examining whether such a violation of equality is based on a strict standard of review, and the degree of mitigated standard of review varies depending on the degree of legislative formation authority recognized by the legislature. If the Constitution presents a field in which the Constitution does not make itself a basis of discrimination, or specifically prohibits discrimination, it is justified to strictly examine discrimination based on such standard or discrimination in such field, and if a serious restriction on relevant fundamental rights is caused by discriminatory treatment, the legislative formation authority shall be reduced and more strict standard of review shall be applied (see, e.g., Constitutional Court Order 98HunMa363, Dec. 23, 199; Constitutional Court Order 2005HunBa34, Dec. 26, 2008).

(B) Criteria for review

Article 2 is only an economic sanction accompanying the loss of qualification according to the sentence of punishment corresponding to the invalidation of election by a superintendent of education elected by a resident, and it does not fall under the case of request for equality in the Constitution, and it does not constitute a case of request for special equality, and it does not lead to a serious restriction on the infringement of the regime or the right to participate in public duties. Therefore, whether the violation of the principle of equality is sufficient to examine only whether the legislator's identity exists.

The requirements for review as to whether or not a person violates the principle of prohibition may be said to be whether or not there is a discrimination that is essentially different in dealing with the same thing, and whether or not such discrimination is arbitrary. Determination as to whether two comparative groups are essentially identical in relation to the former criteria generally depends on the meaning and purpose of relevant constitutional provisions and relevant statutory provisions. In relation to the latter criteria, the nature of discrimination in relation to the latter criteria means the lack of reasonable grounds.

(See Court Order 2003HunBa78 delivered on December 16, 2004, etc.).

(C) Specific determination

As seen earlier, there is a matter of policy to decide on what disadvantage should be imposed on a public official who violates the Election Act when imposing any punishment. Article 2 of the same Act aims to prevent unfair or fall election by guaranteeing the freedom and fairness of election and ensuring the transparency of election by preventing unfair or fall-off elections by excluding involvement in gold rights, governmental rights, violence, etc. that may affect fair elections. The purpose of the same provision is to ensure the integrity of public officials and to enhance the public confidence in the integrity of public service, which is composed of public officials in need of high level of ethical and emotional neutrality corresponding to the public nature of duties, and to enhance the public confidence in such public service.

In light of the purport of the provision of Article 2, even if the elected person and the person who was not elected were sentenced to punishment equivalent to the invalidation of the same election, it is difficult to view that the elected person and the person who were not elected belong to the same category or are inherently identical in terms of legal discipline.

In addition, if the elected person was sentenced to a punishment equivalent to the invalidation of the election due to a violation of the Election Act and the election becomes invalidated, the elected person has been elected by impairing the freedom and fairness of the election, and such election has been elected.

In light of the fact that illegal acts may cause business confessions and undermine the public interest in the continuous and smooth performance of office of education, and that there is a considerable concern that the considerable financial expenditure due to a special election will be borne by the public, the provisions of Article 2 that distinguish the person who has not won the election by having the deposit and election expenses returned only to the elected person who has been sentenced to the punishment equivalent to the invalidation of the election, are separate from the fact that there is no need for sanctions against the latter in terms of legislative policy, and it is reasonable to view that there is a reasonable reason.

Therefore, Article 2 cannot be deemed to violate the principle of equality under the Constitution.

C. Sub-determination

Therefore, Articles 1 and 2 do not violate the Constitution, and all of the above arguments are without merit.

4. Conclusion

Therefore, all of the plaintiff's main claim and ancillary claim are dismissed.

Judges of the presiding judge.

Judges 000

Judges 000 000

Related Acts and subordinate statutes

1. Constitution of the Republic of Korea;

Article 11

1. All citizens shall be equal in front of the law. No person shall be discriminated against in all areas of political, economic, social or cultural life on the basis of gender, religion or social status.

Article 24

Every citizen shall have a right to vote under the conditions as prescribed by Acts.

Article 25

All citizens shall have the right to hold public office under the conditions as prescribed by the Acts.

§ 37.

(2) All freedom and rights of the people may be restricted by an Act only to light matters necessary for national security, the maintenance of order, or public welfare, and even if restricted, the essential contents of the freedom and rights shall not be infringed.

Article 116

(2) Except as otherwise provided by Act, expenses for an election shall not be borne by political parties or candidates.

2. The former Local Education Autonomy Act (amended by Act No. 10046, Feb. 26, 2010)

Article 22 (Election of Superintendent of Office of Education)

(1) The superintendent of education shall be elected by means of the ordinary, equal, direct and secret election of residents.

(2) A political party shall not recommend a candidate for the election of the superintendent of education, and a candidate for the superintendent of education shall file an application for registration in writing with the City/Do election commission in the City/Do election commission for two days from 15 days before the election day after obtaining a recommendation of the elector who is subject to the Public Official Election Act, and the provisions concerning the trends and registration of independent candidates under Articles 48 and 49 of the same Act shall apply mutatis mutandis to such recommendation and registration

(3) Except as otherwise expressly provided for in this Act, the provisions concerning the election of Mayors/Do Governors under the Public Official Election Act shall apply mutatis mutandis to the election of the Superintendent of an Office of Education within the extent not contrary to its nature.

3. The former Public Official Election Act (amended by Act No. 9974 of January 25, 2010)

Article 57 (Return, etc. of Deposit Money)

(1) Every constituency election commission shall refund an amount remaining after deducting expenses to be borne by the deposit money pursuant to the provisions of Article 56 (3) from the relevant amount classified in each of the following subparagraphs to the depositee within 30 days after the election day:

1. Presidential election, election of the National Assembly members of local constituency, and election of the head of local government;

(a) Whole amount of the deposit money in cases where the candidate has been elected or died, and where he has obtained 15/100 or more of the total number of valid ballots;

(b) Amount equivalent to 50/100 of the deposit money in cases where the candidate has obtained not less than 10/100 but less than 15/100 of gross number of valid votes; and

2. Election of proportional representative National Assembly members and proportional representative local council members;

The whole amount of the deposit money when there is an elected person from among the candidates listed on the relevant list;

Article 122-2 (Filling, etc. Election Expenses)

(1) The constituency election commission shall, under the provisions of the following subparagraphs, fill the election expenses (referring to the election expenses that are deemed to have been fairly paid, from among the election expenses reported in the accounting report submitted pursuant to the provisions of Article 40 of the Political Funds Act) that a candidate (referring to the political party that recommends a candidate in the presidential election, in the case of the election of proportional representative National Assembly members and the election of proportional representative local council members; hereafter in this Article, the same shall apply) has disbursed for the election campaign provided for in the provisions of this Act after the election is held at the expense of the State in the presidential election and the election of proportional representative local council members and the head of a local government:

1. Presidential election, election of the National Assembly members of local constituency, and election of the head of local government;

(a) Where a candidate is elected or dies, or the number of votes obtained by a candidate has been at least 15 percent of the total number of valid ballots;

Whole amount of election expenses paid by a candidate;

(b) Where the number of votes obtained by a candidate has been not less than 10/100 but less than 15/100 of the total number of valid ballots;

Amounts equivalent to 50/100 of election expenses paid by a candidate;

2. Election of proportional representative National Assembly members and proportional representative local council members;

Where there is an elected person from among the candidates listed on the list of candidates, the whole amount of election expenses disbursed by the relevant political party;

Article 201 (Special Cases concerning Special Election, etc.)

(1) A special election, etc. (excluding the presidential election, the election for the proportional representative National Assembly members and the election for the proportional representative local council members; hereafter the same shall apply in this paragraph) may not be held, if the period from the election to the expiration date of the term, is less than one year, or if a fourth or more of the full number of local council members are vacant (excluding the case due to any reason for an election, the reelection of which is postponed when the period until the expiration date of the term is one year or more). In such cases, the special election shall be held for the vacant council members when a fourth or more of the full number of

Article 250 (Publication of False Facts)

(1) A person who, for the purpose of election or having another person be elected, publishes or has another person publish or have another person publish any false fact with respect to an organization, etc. to which property, personality belongs, such as his/her spouse, lineal ascendant or descendant, or sibling's birth status, occupation, career, etc. (including cases where an academic background is not published by the method provided for in Article 64 (1), in cases where an academic background is not published) in favor of a candidate (including a person who intends to be a candidate; hereafter the same shall apply in this Article) by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or other means, and a person who holds a propaganda document carrying false facts for the purpose of distributing it shall be punished by imprisonment for not more than five years or by

Article 264 (Invalidity of Election due to Election Offense by Elected Persons)

If an elected person is sentenced to imprisonment or a fine of not less than one million won on account of committing the crime provided for in this Act and the crime provided for in Article 49 of the Political Funds Act in the election concerned, and the crime committed by the elected person, his election shall become invalidated.

Article 265-2 (Return of Expenses by Persons, etc. whose Election is invalidated)

(1) Any person whose election is invalidated (including any person who has resigned before the final and conclusive judgment after his indictment) under the provisions of Articles 263 through 265 (Invalidity of Election due to Excessive Disbursement of Election Expenses) shall return the amount returned under the provisions of Articles 57 (Return, etc. of Deposit Money) and 122-2 (Preservation, etc. of Election Expenses). In this case, when the election of candidates in the presidential election, and when the election of candidates in the election of proportional representative National Assembly members and proportional representative local council members becomes invalidated all, the recommending political party shall return the said amount.

(2) When the grounds for return under paragraph (1) have occurred, the competent constituency election commission shall promptly notify the relevant political party or candidate of the amount to be returned, and the relevant political party or candidate shall pay it to the constituency election commission within 30 days from the date of receiving the said notification.

(3) If the political party or candidate fails to pay it by the deadline for payment under paragraph (2), the competent constituency election commission shall entrust the head of a tax office having jurisdiction over the address of the candidate (referring to the seat of the central party in cases of a political party) with the collection thereof, and collect it in the same manner as delinquent

(4) The amount paid or collected under paragraph (2) or (3) shall revert to the State or local governments.

(5) The method and procedure for notification under paragraph (2) and other necessary matters shall be prescribed by Regulations of the National Election Commission.