(영문) 서울남부지방법원 2007.11.6.자 2007카합2962 결정

Until the judgment on the merits of the lawsuit seeking nullification of the intraparty competition No. 18608 becomes final and conclusive, the respondent shall

No head of any Tong shall perform his duties as a candidate.

Reasons

1. Basic facts

According to the records of this case, the following facts are substantiated.

A. The applicant is a member of the Hanna Party, and the respondent is a person elected as a candidate from the 17th presidential candidate for the 17th presidential candidate for the 17th presidential candidate who announced the result on August 19, 2007.

B. The instant presidential election was conducted as a vote and a public opinion poll of the citizen participation elector group, and the respondent, 00, 000, and 000 were recruited as a candidate. As a result of the competition, the respondent obtained total 81,084 votes, and obtained total 78,632 votes, and obtained total 78,632 votes, and decided as a candidate for the 17th presidential election of the Hanra Party 17th presidential election.

(2) Where any political party conducts a intra-party competition [including a public opinion poll substituting the intra-party competition that is conducted in accordance with the party constitution, party regulations or a written agreement among the competition candidates for the intra-party competition (hereinafter referred to as "party competition candidate")] for those who are listed as a candidate for the intra-party competition, any person who is not elected as a candidate for the relevant political party as a candidate for the same constituency for the relevant election shall not be registered as a candidate for the relevant election: Provided, That the same shall not apply where any person who is elected as a candidate loses his/her qualification due to death, forfeiture of the eligibility for resignation, or renunciation or change of party membership

(3) Anyone who is disqualified as a member of any political party in accordance with Article 22 of the Political Parties Act shall be prohibited from becoming an elector in the intra-party competition.

Political Parties Act

Article 22 (Qualifications of Promoters and Party Members) (1) Any person who has the right to vote for National Assembly members may become a promoter or party member of a political party, notwithstanding the provisions of other Acts and subordinate statutes that prohibit a party from joining the political party or political activities by reason of his/her status as a public official or any other person: Provided, That

1. A public official prescribed in Article 2 (Classification of Public Officials) of the State Public Officials Act or Article 2 (Classification of Public Officials) of the Local Public Officials Act: Provided, That the President, the Prime Minister, a member of the State Council, a member of the National Assembly, a member of a local government who is appointed by election, the head of a local government, an assistant, secretary, or secretary of the National Assembly, a policy research member of the negotiation body of the National Assembly, and a president, dean, professor, associate professor, or assistant professor under Article 14 (1) and (2) of the Higher Education Act shall be excluded;

2. A teacher of a private school, excluding the president, dean, professor, associate professor, assistant professor, and full-time lecturer;

Article 82 (Election of Candidates) (2) The candidate of the President is the person who has his status as a public official under the relevant Act and subordinate statutes. The candidate of the President shall be the person who has the highest number of votes as a result of the final collection, which is calculated by reflecting 80% of the valid votes of the National Participatory Elector’s Association, and 20% of the results of the public opinion poll, and the result of the final collection, which is calculated by reflecting 20% of the valid votes of the National Participatory Elector’s Association.

1. Representatives of pawned Games;

2. An elector who is not a representative of the pawned Games;

3. An elector recruited for the general public;

(2) Notwithstanding Article 12 (1) of the party constitution, subparagraph 1 of the preceding paragraph shall consist of 2/8, 3/8, 8, and 3 of the total number of the electors participating in the National Assembly.

Presidential candidate selection regulations (which was completely amended on May 21, 2007)

Article 21 (Preparation of List) (1) The Committee shall prepare a list of National Participating Groups by 15 days before the election day.

Article 22 (Perusal of List) (1) The Chairperson shall designate a place for at least one day from the date following the completion date of preparation of the list under paragraph (1) (hereinafter referred to as "inspection period") and allow perusal of the list of electors participating in the National Assembly.

Article 23 (Correction, etc. of List) (1) The Chairperson shall allow any elector who has an objection to the preparation of the list of electors participating in the public to file an objection orally or in writing with the Committee, specifying a period of at least one day from the date following the expiration date of the perusal period, including the perusal period, along with explanatory materials.

Article 24 (Confirmation of List) The list of National Participating Groups shall become final and conclusive upon the termination of a decision on an objection filed pursuant to Article 23 (Correction, etc. of List).

Article 25 (Delivery of Copy of Register) The Committee shall, where the list of the people's participatory electors becomes final and conclusive, deliver one copy of the list of the people's participatory electors who have completed the candidate's registration and one copy of the copy of the computerized data.

Election Management Rules (hereinafter referred to as the "Election Management Rules") for the 17th President Candidates;

Article 9 (List of National Participation Lists) (2) Detailed descriptions shall be as follows:

1. Division of electoral groups (representatives of pawned Games, electors of party members, and electors of nationals);

2. Name;

3. Resident registration number, one year of birth, and only gender;

4. Address;

(3) The electoral register shall be issued at 19 days prior to the commencement date of an election campaign. Article 2 (Subject Matters of and sampling size) (1) of the Enforcement Rule of the Public Opinion poll for the election of presidential candidates.

(2) The size of samples shall be 6,000 persons.

Article 11 (Methods of Calculation of Number of Days Obtained by Candidates) (1) Methods of calculating the number of votes obtained shall be as follows:

1. (See valid votes of the electoral group participating in the National Assembly)x 2/8 (Inclusion ratio in the results of a public opinion poll) = Number of electors in a public opinion poll;

2. (Number of electors in the public opinion poll) X (ratio of support for the public opinion poll by candidate) = The number of votes obtained by each candidate;

The applicant selected the general public elector's association which accounts for three-eights of the total number of the electors in the instant competition, and did not verify the eligibility of electors in the intraparty competition pursuant to Article 57-2 (3) of the Public Official Election Act and Article 22 of the Political Parties Act, and thus, a person who is not qualified as electors can be selected as an electoral group. ② Under Article 57-2 (2) of the Public Official Election Act, the primary election is conducted by selecting one of the legitimate circumstances among ① elector's election, ② public opinion poll pursuant to the party constitution and party rules, ③ public opinion poll pursuant to the mutual agreement between the candidates for the intraparty competition. However, in order to convert the result of the public opinion poll into the result of the public opinion poll into the number of electors, the public opinion poll is limited to those who are qualified as electors in the intraparty competition and the public opinion poll should be conducted by the method of complete voting, but there is a significant defect in sample survey without being limited to those who are eligible for the public opinion poll, and thus, the purport of the provisional disposition is invalid.

3. Determination

A. First, we examine the allegation that there is a defect in selecting the general public elector’s name without confirming whether the candidate is qualified as the primary elector under Article 57-2(3) of the Public Official Election Act and Article 22 of the Political Parties Act.

In light of the records, it is proved that Hanna Party requested a public opinion poll to recruit the general public electoral association and did not specifically verify whether the candidate is a public official, and whether the teacher of a private school who is not a party member or a teacher of a private school who is not a party member is a public official under the provisions of Acts and subordinate statutes. However, if the teacher of a private school who is not a party member was selected as a general public electoral association, there is a defect in the competition in this case. However, if there is no evidence that the teacher of a private school, who is not a party member, was selected as a general electoral group, the competition in this case cannot be deemed invalid due to a defect in the competition in this case. Thus, in the competition in this case, there is no proof that the competition in this case includes a teacher of a private school, who is not a party member of the general public electoral association, or a person holding the status of a public official under the provisions of Acts and subordinate statutes. Rather, according to Articles 21 through 25 and Article 9 of the Election Management Rule, each candidate's Election Management Rule, each of this case did not begin the election.

B. Next, we examine the assertion that there is a defect in the voting by the National Participating Voting Group and the public opinion poll conducted concurrently.

The main text of Article 57-2 (2) of the Public Official Election Act ("Public Official Election Act"), which aims to prevent any act impeding the fairness of election and the development of political party politics by registering as a candidate for the relevant election by a person who has participated in the intraparty competition and has objection to the result thereof, and in particular, the main part among them is the former Political Parties Act ("Public Official Election Act").

4. Article 31(3) of the Public Official Election Act (amended by Act No. 7683) (where a person who was registered as a candidate for the intra-party competition and who was registered as a candidate for the intra-party competition is not elected as a candidate for the intra-party competition in the event of holding the intra-party competition, "public opinion poll replacing the intra-party competition" is added to the public opinion poll (amended by Act No. 7681 of Aug. 4, 2005) that reflects the fact that the public opinion poll is widely used in addition to the public opinion poll by the method of selecting the candidates for the intra-party competition, as alleged by the applicant, is also included in the intra-party competition prohibited from being dissatisfied with the result. Since the public opinion poll is conducted by selecting any one of the public opinion poll by a written agreement between the candidates, it means not only the fact that the candidate conducts the intra-party competition without the intra-party competition, but also the fact that it is not a substitute for the two-party competition.

C. Finally, we examine the argument that the subject of the public opinion poll is not limited to the one qualified as the elector of the competition for each party, and that there is a defect that the public opinion poll was conducted by the method of sample survey.

The purpose of this case’s public opinion poll is to calculate the support rate for each candidate of the entire voters and reflect the public opinion of the general public. Thus, the sample survey does not require that the person subject to the sample survey be qualified as the elector for the party competition under Article 57-2(3) of the Public Official Election Act, and that there is sufficient ground for the presidential election under Article 15 of the Public Official Election Act. In addition, considering the nature of the public opinion poll and the purpose of the public opinion poll in the light of the nature of the public opinion poll and the purpose of the public opinion poll in the instant light, it was inevitable to use the sample survey method in the public opinion poll in the instant light of the fact that it was inevitable to use the sample survey method in the public opinion poll in the instant light of the nature of the public opinion poll and the purpose of the public opinion poll in the instant light, and the answer of the persons subject to the public opinion poll only has the value as a sample to calculate the support rate of all voters, and it cannot be applied to the constitutional principle on election, such as the principle of equality in the instant light competition.

4. Conclusion

Thus, the applicant's application is dismissed without any further determination as to the necessity of preservation because there is a lack of vindication as to the right to be preserved.