[1] In a case where a judge who requested an investigation to investigate a suspected violation of the Act on Election of Public Officials and Prevention of Unlawful Election, as the chairman of the election management committee, conducts a trial on the relevant criminal defendant case, whether "a judge who is a cause of exclusion under Article 17 subparagraph 6 of the Criminal Procedure Act, performs the duty of judicial police officer in relation to the case (negative)

[2] Meaning of "when a judge, who is a cause of exclusion under Article 17 subparagraph 7 of the Criminal Procedure Act, participates in an investigation based on the case," and whether a judge, as the chairman of the election management committee, requests an investigation to an investigation agency on the facts suspected of violation of the Public Official Election and Prevention of Election Illegal Act, and then conducts an appellate trial on the criminal defendant case in question (negative)

[1] Since Article 197 of the Criminal Procedure Act or Article 197 of the Act on Persons Performing the Duties of Judicial Police Officials and Scope of their Duties, and there are no other grounds to regard it as being a judicial police officer, if a judge who requested an investigation to investigate a suspected fact of violation of the Election and Prevention of Unlawful Election Act, as the chairman of the election management committee, conducts a trial on the relevant criminal defendant case, it cannot be deemed appropriate, but a judge, who is a reason for exclusion under Article 17 subparagraph 6 of the Criminal Procedure Act, cannot be deemed as falling under "where he performs the duties

[2] "When a judge, who is a cause of exclusion under Article 17 subparagraph 7 of the Criminal Procedure Act, participates in the collection and investigation of materials to be used in forming the contents of the previous trial, and the result thereof is used as the fact-finding data of the previous trial. Therefore, in case where a judge requests an investigation to an investigation agency on a criminal charge of violation of the Election of Public Officials and Prevention of Unlawful Election Act as the chairman of the election management committee, and thereafter makes a trial at the appellate court of the relevant criminal case, it cannot be deemed that "when a judge, as provided in Article 17 subparagraph 7 of the Criminal Procedure Act, participates in the relevant investigation based on the case."

[1] Article 17 subparagraph 6 of the Criminal Procedure Act / [2] Article 17 subparagraph 7 of the Criminal Procedure Act

Defendant

Defendant

Attorney-at-law

Gwangju High Court Decision 98No71 delivered on December 18, 1998

The appeal is dismissed.

We examine the grounds of appeal.

1. On the first ground for appeal

The chairman of the election management commission does not stipulate as a person performing the duties of judicial police officers under Article 197 of the Criminal Procedure Act or the Act on the Persons Performing the Duties of Judicial Police Officers and the Scope of their Duties, and there is no other ground to regard as a judicial police officer. Therefore, if a judge who requested an investigation agency to investigate a suspected violation of the Election Act as a chairman of the election management commission requests an investigation agency to render a trial on the relevant criminal defendant case, it cannot be deemed appropriate, but it cannot be said that a judge who is a cause of exclusion under subparagraph 6 of Article 17 of

In addition, "where a judge, who is a reason for exclusion under Article 17 subparagraph 7 of the Criminal Procedure Act, has participated in the collection and investigation of data to be used in forming the contents of the previous trial, and the result thereof is used as the fact-finding data of the previous trial. Therefore, the judge shall request an investigation to the investigation agency on the facts suspected of violating the Public Official Election and Prevention of Election Illegal Act as the chairman of the election management committee, and thereafter, it is not appropriate to request the investigation agency to investigate the facts of the criminal defendant case, but it cannot be said that the judge, which is the reason for exclusion, is involved in the relevant criminal defendant case.

Therefore, there is no reason to argue that there is an error of law by a judge who is not allowed to participate in a judgment in violation of Article 17 subparagraphs 6 and 7 of the Criminal Procedure Act.

2. On the second ground for appeal

The facts charged of this case reveal that the defendant did not post a sign of party members' rally in holding a rally from May 10, 1998 to 20:30 on May 1998, when holding a party members' rally as the chairman of the district party branch of the new political party, the defendant did not post a sign of party members' rally in holding a rally from the second floor room of the hotel located in Jeju-do from around 19:00 on May 10, 1998 to the 6:4:0 on May 30, 1998. However, the defendant clearly falls under the party members of the newly established district party branch of the new political party, and it is obvious that the defendant falls under the party members' right and wrong under Article 256 (2) of the Act on the Election of Public Officials and the Prevention of Unlawful Election for the National Assembly Members, and the defendant knew the fact that the election commission members did not post a sign of party members' rally but did not delay the rally, and therefore, the court below did not err in misapprehending the legal principles and Article 16 of the Political Parties Act.

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

Justices Lee Jae-soo (Presiding Justice)