[1] The scope of the intraparty competition campaign permitted by the former Election of Public Officials and the Prevention of Election Illegal Act

[2] The case affirming the judgment of the court below which held that the act of a person who intends to elect a candidate for a National Assembly member and participate in the election in the district party established and operated an organization in the relevant local constituency and appeal for support to the electorate goes beyond the scope of the intraparty competition campaign permitted by the former Election of Public Officials and Prevention of Election Malpractice

[3] The criteria for determining whether an organization, etc. constitutes a "similar institution" under the main sentence of Article 89(1) of the former Act on the Election of Public Officials and the Prevention of Election Fraud

[4] The meaning of "act affecting the election" under Article 89 (2) of the former Public Official Election and Prevention of Election Illegal Act

[5] In a case where a person who was elected as a candidate for a National Assembly member at a district party establishes an organization in the relevant district district and holds a large-scale interview special lecture and a university entrance presentation session in order to overcome his low personal guidance, the case holding that it is sufficient to view it as an act likely to affect the election prohibited by the former Election of Public Officials and the Election Prevention Act in light of the time, motive, target of the event, etc.

[1] Where an act in preparation for a intraparty competition leads to an active and planned act beyond the degree of internal and procedural preparatory act that may be included in the "candidate and election campaign" under Article 58 (1) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) or the "ordinary political party activity" (amended by Act No. 7189 of March 12, 2004), various penal provisions in the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) shall not be exempted, and it is clear that Article 17 of the Addenda and Article 8 of the amended Political Parties Act (amended by Act No. 7190 of March 12, 2004) are applied to each act prior to the enforcement of the former penal provisions.

[2] The case affirming the judgment of the court below which held that the act of a person who wants to elect a candidate for a National Assembly member in a district party and establish and operate an organization in the relevant local constituency and appeal for support to the electorate goes beyond the scope of an intraparty competition campaign permitted by the former Election of Public Officials and Prevention of Election Illegal Act (amended by Act No. 7189 of March 12, 2004)

[3] Since a certain organization constitutes a similar organization under the main sentence of Article 89(1) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of Mar. 12, 2004), if a person who wishes to be a candidate establishes an organization with the intent to affect the electors beyond the dimension of internal preparation for election, it constitutes a similar organization under the above provision.

[4] The phrase "act affecting the election" under Article 89 (2) of the former Public Official Election and Prevention of Election Malpractice Act (amended by Act No. 7189 of Mar. 12, 2004) includes an act that may indirectly affect the election and thereby undermine the fairness of the election, even though it did not reach an election campaign in terms of a wider concept than the election campaign. Therefore, even if it appears to be irrelevant to the election on the surface, if it is evaluated as an act that is likely to have an effect on the election, taking into account all circumstances such as the time, motive, method, etc. of the act, and if it is evaluated as an act that is likely to have an effect on the election, it shall be deemed as an

[5] In a case where a person who is selected as a candidate for a National Assembly member and wants to participate in a district party establishes an organization in the relevant district district and holds a large-scale interview special lecture and a university entrance presentation session in order to overcome his low personal guidance, the case holding that in light of the time, motive, target of the event, etc., it is sufficient to view that the act is likely to have an impact on the election prohibited by the former Election of Public Officials and Prevention of Election Illegal Act (amended by Act No. 7189 of Mar. 12, 2004)

[1] Article 58 (1) of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of March 12, 2004); Article 17 of the Addenda to the Public Official Election Act (amended by Act No. 7189 of March 12, 2004); Article 8 of the Addenda to the Political Parties Act (amended by Act No. 7189 of March 12, 2004) / [2] Article 58 (1) of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of March 12, 2004) / [3] Articles 89 (1) and 255 (1) 13 of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7189 of March 12, 2004); Article 8 of the Addenda to the Public Official Election Act (amended by Act No. 7189 of March 12, 2004)

[1] Supreme Court Decision 2004Do5497 Decided October 28, 2004, Supreme Court Decision 2004Do7511 Decided January 27, 2005 (Gong2005Sang, 376) / [3] Supreme Court Decision 2004Do7511 Decided January 27, 2005 (Gong2005Do2246 Decided September 15, 2005 / [4] Supreme Court Decision 2005Do2690 Decided August 19, 2005 (Gong2005Ha, 1532), Constitutional Court en banc Decision 2004Hun-Ba41 Decided October 27, 2005

Defendant

Prosecutor and Defendant

Law Firm Pacific, Attorneys Oi-seok et al.

Seoul High Court Decision 2004No2011 delivered on December 21, 2004

The judgment below is reversed and the case is remanded to Seoul High Court.

1. We examine the Defendant’s grounds of appeal.

A. The scope of the intra-party competition campaign

In this case where the Act on the Election of Public Officials and the Prevention of Election Malpractice (hereinafter “former Public Official Election Act”) prior to the amendment by Act No. 7189 of March 12, 2004 (hereinafter “former Public Official Election Act”) applies, where the act in preparation for the intraparty competition reaches an active and planned act beyond the degree of internal and procedural preparation that may be included in the “act of preparation for election candidate and election campaign” under Article 58(1) of the former Public Official Election Act (Article 58(1)(Article 2) or the “ordinary political party activity” (Article 4), various penal provisions in the former Public Official Election Act related to the election campaign cannot be exempted (see Supreme Court Decision 2004Do5497, Oct. 28, 2004); Article 17 of the Addenda to the amended Public Official Election Act and Article 58(1) of the former Political Parties Act (Article 204Do5497, Mar. 12, 2004).

According to the evidence duly adopted by the court below, in relation to the 17th National Assembly member election implemented on April 15, 2004, the defendant established and operated (organization name omitted) organizations from November 2003 to January 2004 in order to inform the face of the defendant to the electorate of the (organization name omitted) Internet homepage, posted materials related to the defendant on the Internet homepage, held an interview special course, etc., and the defendant appealed for support, such as distributing name to the electorate directly, or personnel management in the subway station, etc.

According to the above legal principles and the above facts, each of the above acts by the defendant constitutes an active and planned act beyond the degree of internal and procedural preparation that can be included in the "candidate and election campaign" under Article 58 (1) of the former Public Official Election Act or the "ordinary political party activity" under Article 58 (1) of the former Public Official Election Act, and thus, it shall be deemed that it exceeds the scope of the intra-party competition campaign permitted under the former Public Official Election Act. Accordingly, the judgment of the court below is just and there is no error in the misapprehension of legal principles as to the scope of

B. As to the violation of the prohibition of establishment of a similar organization

Since whether a certain organization, etc. constitutes a “similar organization” under the main sentence of Article 89(1) of the former Public Official Election Act is determined by the existence of the purpose of election campaign, if a person who wishes to be a candidate establishes an organization, etc. with the intent to affect the electors beyond the dimension of internal preparation for election, it constitutes a similar organization under the above provision (Supreme Court Decision 2005Do246 Decided September 15, 2005).

According to the records, the defendant is acknowledged to have been elected as a candidate for the National Assembly member of Hanra in the Seoul Mine-gu Seoul Special Metropolitan City, without any connection, and to have been elected as a candidate for the National Assembly member, while establishing and operating the organization (the name of organization omitted) by making the party members of Hanra-Ja District as its executive officers, and posted materials related to the defendant on the Internet homepage of the above organization and held an event such as the presidential interview and special lecture for the interview

According to the above legal principles and the above facts, (organization name omitted) is deemed to fall under the "similar agency" under the main sentence of Article 89 (1) of the former Public Official Election Act. Therefore, the decision of the court below to the same purport is just, and there is no violation of law such as misunderstanding of legal principles concerning the scope

C. As to the violation of the prohibition clause that prohibits an act affecting the election of organizations, etc.

Since "act that affects election" under Article 89 (2) of the former Public Official Election Act includes acts that are likely to affect election, such act does not require a result that actually affects election. In addition, as long as Article 17 of the Addenda of the amended Public Official Election Act provides a transitional provision that applies the penal provisions to acts before the enforcement of the Act, inasmuch as an election campaign utilizing the Internet homepage is partially permitted due to the amendment of the above Act, the liability for the crime committed prior to the enforcement of the previous penal provisions cannot be exempted.

The court below acknowledged the facts of the judgment by taking full account of the adopted evidence, and found that the act of connecting the defendant's personal homepage or posting the defendant's personal interview screen pictures and articles on the (name omitted) Internet homepage established by the defendant constitutes an act that affects the election under Article 89 (2) of the former Public Official Election Act. Thus, the court below's judgment to the same purport is just, and there is no error of law as to an act that affects the election, as otherwise alleged in the ground of appeal.

D. As to the violation of the prohibition of distribution of documents, etc. by unlawful means

According to the evidence duly adopted by the court below, since the defendant participated in the event held by the Gwangjin-gu Office and distributed name cards to the electorate even during the election period, this is deemed to have distributed documents to the electorates. Thus, the judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to an act affecting the election as otherwise alleged in the ground of appeal. The defendant's investigation report on the name card issued by the court below was not admitted as evidence, and the ground of appeal disputing the admissibility of evidence is not acceptable (the use of the original investigation report as evidence is printed out in the electronic document prepared by the non-indicted, which is bound by the investigation report as evidence, and this is clear by the defendant's consent on the date of the first trial of the court of first instance as evidence).

E. As to the violation of the provision prohibiting advance election campaign

The court below determined that the act of personnel by the defendant to attend the subway station constitutes an advance election campaign. In light of the records, the court below's evidence preparation, fact-finding and decision are justified, and there are no errors in the misapprehension of legal principles as to the scope of advance election campaign, as otherwise alleged in the ground of appeal.

F. Therefore, the defendant's appeal is without merit.

2. We examine the Prosecutor’s grounds of appeal.

A. As to the facts charged that (the name of the organization omitted) established by the Defendant against the electorates, etc., the lower court acquitted him/her on the ground that each of the above events did not constitute an “act affecting the election” under Article 89(2) of the former Public Official Election Act, since he/she did not mention the election or publicize the Defendant in the process of the above events.

B. However, we cannot accept the judgment of the court below for the following reasons.

The phrase “act affecting the election” under Article 89(2) of the former Public Official Election Act includes an act that may affect the election by indirectly affecting the election, even if it does not reach the election campaign, by means of a wider concept than the election campaign (see Supreme Court Decision 2005Do2690, Aug. 19, 2005; Constitutional Court en banc Decision 2004Hun-Ba41, Oct. 27, 2005). Therefore, even if an act appears to be irrelevant to the election on the surface, if it is evaluated as an act that is likely to affect the election by comprehensively taking into account all the circumstances such as the time, motive, method, etc. of the act, if it is evaluated as an act that is likely to affect the election, it shall be deemed an act that affects the election as prescribed under the said provision.

According to the evidence duly adopted by the court below, the defendant established the office of the organization (organization name omitted) in the Magjin-gu election district in Seoul on April 15, 2004 at the 17th National Assembly member election of the 17th National Assembly member of the National Assembly, on the idea that he would go to the candidate for the Magjin-gu Seoul National Assembly member of the National Assembly. On November 2003, 2003, the defendant had no record of volunteer activities, and decided to hold a meeting (organization name omitted) as one of the activities to overcome his low personal guidance, such as visiting various high schools located in the Magjin-gu election district and visiting the Magjin-gu special lecture course and a college entrance presentation, and held the above events on March 3, 2003. However, the majority of the 20 persons who participated in each of the above events were directly present at the Magjin-gu election district and the defendant was directly present at the Magjin-gu election district.

According to the above legal principles and the above facts, an act of holding (group name omitted) a special interview course or a university entrance presentation session is sufficient to be deemed as an act to create a favorable situation for the defendant among the electorates in light of the time, motive, target of the event, etc., and it is sufficient to view it as an act to have an influence on the election, and it does not change on the ground that the reference to the election or publicity of the defendant was not made in the process of the above event. If the reference to the election or publicity of the defendant was conducted in the process of the above event, it shall be deemed as a direct election campaign beyond the degree of an act affecting the election.

On the contrary, the court below acquitted this part of the facts charged, which is erroneous in finding facts against the rules of evidence as to the scope of "act affecting the election" under Article 89 (2) of the former Public Official Election Act, or in misunderstanding the legal principles as to such act.

3. Conclusion

Therefore, the Defendant’s appeal on the guilty portion of the judgment of the court below is without merit. The Defendant’s appeal on the acquittal portion is with merit, but all the facts charged in the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act and a single sentence should be pronounced. Therefore, the judgment of the court below is reversed in its entirety, and the case is remanded to the court below for a new trial and determination.

Justices Son Ji-yol (Presiding Justice)