[1] The meaning of "a person in the relevant constituency" under Article 112 (1) of the former Public Official Election and Prevention of Election Illegal Act

[2] The requirements to deny the illegality of a contribution act that does not fall under the ordinary or official acts under Article 112(2) of the former Election of Public Officials and Prevention of Election Illegal Act

[1] Article 112 (1) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7681 of Aug. 4, 2005) / [2] Articles 112 (2), 113, and 257 (1) 1 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7681 of Aug. 4, 2005), Article 20 of the Criminal Act

[1] Supreme Court Decision 96Do500 delivered on November 29, 1996 (Gong1997Sang, 260) / [2] Supreme Court Decision 2003Do1697 delivered on August 22, 2003 (Gong2003Ha, 1978) Supreme Court Decision 2005Do773 Delivered on December 9, 2005

Defendant

Defendant and one other

Law Firm Barun, Attorneys Hong Il-il et al.

Seoul High Court Decision 2005No2222 delivered on January 24, 2006

Each appeal shall be dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. The argument that the defendant's act of donation to the other party, who is the head of the Incheon Jung-gu Office or the head of the Jung-gu Office, is not a person or organization who has a relation with the electorate, and thus does not constitute an element of establishment under Articles 257 (1) and 113 (1) of the former Public Official Election Act (amended by Act No. 7681 of Aug. 4, 2005; hereinafter "Public Official Election Act"), shall not be a legitimate ground for appeal. Meanwhile, it shall not be deemed that the defendant's act of donation does not constitute an "person within the relevant constituency" or a person who temporarily stays in the constituency as well as a person who has a domicile or residence within the constituency, and thus, it shall not be deemed that the defendant's act of donation does not constitute an "person or the other party to the election district" of Incheon Jung-gu Office's act of donation, even if there is no difference between the defendant's official or the other party to the election district within the constituency of Incheon Jung-gu Office. Therefore, it shall not constitute an "person or the relevant election district of Incheon Jung-gu."

B. Article 112(2) of the Public Official Election Act, and the National Election Commission Regulations and its relevant committee’s decision, in a case where an act enumerated as a formal or official act is permissible, it lacks the element of a crime under Article 257(1)1 of the same Act that punishs a candidate’s violation of the prohibition of contribution act. In a case where, even though a contribution act by a candidate, etc. does not constitute a formal or official act under Article 112(2) of the same Act, it can be seen that it is within the scope of social order that is naturally created as a kind of normal living form, and thus, it does not violate social rules (see Supreme Court Decisions 2003Do1697, Aug. 22, 2003; 2005Do7773, Dec. 9, 2005, etc.).

Examining the reasoning of the judgment below in light of the above legal principles, in light of the various circumstances in the judgment, etc., the court below erred in the misapprehension of legal principles as to the act of providing 12 kilograms of rice each month to the senior citizen center from March 12, 2004 to February 2005, the act of paying a monetary reward to the employees of the senior policeman on September 31, 2004 and the above Jung-gu Office on December 31, 2004, the act of paying 2 million won to the senior policeman on December 12, 2004 to the senior policeman on February 6, 2005, and the act of delivering 1 bottles to the senior policeman on February 85, 205 as a gift, which can be deemed to be within the scope of social order which is a normal form of living, and there is no violation of the legal principles as to the act of donation and social rules as alleged in the ground for appeal.

2. As to the Prosecutor’s Grounds of Appeal

Examining the reasoning of the judgment below in light of the records in light of the aforementioned legal principles, it is just that the court below held that the illegality of the defendant's act as a kind of formal or official act which can be viewed as being within the scope of social order which is historically created as one of the normal living forms, and is thus unfair because it does not violate social rules, and there is no error of law such as misunderstanding the legal principles as to the grounds for rejection of illegality in relation to the prohibition of contribution act, as otherwise alleged in the grounds for appeal.

3. Conclusion

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

Justices Yang Sung-tae (Presiding Justice)