208Do11434 Violation of the Public Official Election Act

Current LOS (DOTNE MET), DOM

Seoul Residence

Seoul basic domicile

Defendant

Seoul High Court Decision 2008No1185 Decided November 27, 2008

February 12, 2009

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Restrictions on acts stipulated in Article 93(1) of the Public Official Election Act are intended to pursue common interests of electors or all citizens, including electors, by guaranteeing the freedom and fairness of election. Therefore, the legitimacy of legislative purpose is recognized, as well as the meaning as an institutional device to ensure the freedom and fairness of election in a participating sense, and it is difficult to present effective means to prevent harm in addition to prohibiting such acts for a certain period of time. In particular, such restrictions are deemed reasonable and appropriate in that they are subject to the premise that "in order to affect the election," and such restrictions are necessary and minimum measures for securing the fairness of election and are inevitable, and thus, they cannot be deemed as infringing upon the freedom of candidate's political opinion or the right of citizens to know about such facts. It cannot be said that there is an infringement on the fundamental freedom of election and the right of public opinion at the time of the election. It is also necessary to reasonably determine the meaning of Article 93(1)2 of the Public Official Election Act and Article 90(2)4 of the same Act within the meaning of Article 90(25).1 of the Constitutional Court Decision.

In addition, even if the proviso of Article 59 of the Public Official Election Act provides that a candidate or a person who intends to be a candidate may carry out an election campaign using his/her Internet homepage without any restriction on the election campaign period, in light of the amendment process, etc., the proviso of Article 59 of the same Act is merely the purport of newly allowing only a candidate or a person who intends to be a candidate to carry out an election campaign using his/her Internet homepage that could not have been carried out before the election campaign period, and further, it cannot be deemed that the proviso of Article 59 of the same Act only permits a new act of using his/her own election campaign on the Internet homepage that a candidate or a person who intends to be a candidate to be a candidate to be a candidate through the revision of the Act, and it cannot be deemed that the provision allowing a person who is not a candidate or a person

On the other hand, the judgment in violation of Article 270 of the Public Official Election Act, which is a mandatory provision on the trial period of an election criminal, cannot be deemed null and void (see Supreme Court Decision 2005Do3558, Jul. 8, 2005). Article 9(2) of the Public Official Election Act only provides the prosecutor's prompt, fair and equitable control and investigation duty on the violation of the Public Official Election Act, and the prosecutor does not prohibit the prosecutor from investigating and bringing a prosecution on a matter that did not undergo an investigation, request investigation, or accusation by the election commission. Thus, it cannot be deemed that the fair election management is damaged or is likely to result in an election. The above provision of Article 9(2) of the Public Official Election Act does not have any grounds or grounds to deem that the legislative formation power of the legislator is unconstitutional as a result of the exercise of the legislative formation right.

In light of the above legal principles and records, the court below's finding facts based on its adopted evidence and finding a guilty guilty of all the facts in the judgment below shall be acceptable. There are no errors in the misapprehension of legal principles as to the interpretation or unconstitutionality of relevant laws and regulations, such as the Public Official Election Act concerning the elements of punishment of this case, election campaign and election campaign period, etc., the principle of prohibition against double Jeopardy, abuse of public prosecution right, guarantee of defendant's right to defense, investigation of election criminal and indictment procedure

2. In this case where a fine is imposed, the grounds such as the lower court’s punishment is too unreasonable and inappropriate cannot be a legitimate ground for appeal under Article 383 subparag. 4 of the Criminal Procedure 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 Park Si-hwan

Justices Yang Sung-tae

Justices Park Il-il

Justices Kim Nung-hwan