[1] The meaning of and criteria for determining “election campaign” and “election campaign” under Article 135(3) of the Public Official Election Act

[2] In a case where Defendant, an accountant in charge of Party A’s election campaign, was indicted for violation of the Public Official Election Act on the ground that he concluded an election consulting service agreement with Party B and paid service fees in relation to the election campaign, the case holding that the acts performed before the beginning of the election campaign period among the acts performed for the purpose of this service agreement are preparatory acts for the election campaign, and that the expenses required therefor cannot be deemed as election expenses

[1] The term "election campaign" under Article 135 (3) of the Public Official Election Act refers to any active and planned act that is necessary for the election or defeat of a specific candidate, and that is objectively recognized by the intention of promoting the election or defeat of a specific candidate. It is distinguishable from the act of preparing an election campaign that falls under the internal or procedural preparation for a future election campaign or ordinary political party activities. However, in determining whether a certain act constitutes an election campaign, it shall be determined whether an act is an act accompanying the will of promoting the election or defeat of a specific candidate by comprehensively observing not only the name of the act, but also the form of the act, i.e., the time, place, method, etc. of the act is performed, and whether it is an act accompanying the election or defeat of a specific candidate. In addition, the term "election campaign" under Article 135 (3) of the Public Official Election Act refers to "for an election campaign, with the motive of matters concerning an election campaign", and even if there was no purpose or election affecting the election purpose or election, such act itself is likely to infringe on the freedom and fairness of the election campaign.

[2] In a case where Defendant (person in charge of accounting of Party A), who was a candidate for a National Assembly member election, concluded an election consulting service contract with Party B (hereinafter “service contract”) and paid service fees in connection with the election campaign, and was prosecuted for violation of the Public Official Election Act on the ground that the election expenses exceeded the election expenses, the case holding that in light of all circumstances, the judgment below erred by misapprehending the legal principles on the probative value of criminal judgment, confirmation of election expenses, etc. in the judgment below, even though all the acts conducted for the purpose of this service contract for Party B, which were conducted before the beginning of the election campaign period for the election campaign period, namely, election strategies, contact bb, and basic public relations, and preparation for the awareness of the opening of an election campaign office and the act of viewing the society, etc.

[1] Article 135(3) of the Public Official Election Act, Article 58 of the former Public Official Election Act (Amended by Act No. 1211, Aug. 13, 2013) / [2] Articles 119, 120 subparag. 1, 121, 122, 135(3), and 258(1)1 of the Public Official Election Act

[1] Supreme Court Decision 98Do1432 Decided April 9, 199 (Gong199Sang, 935) Supreme Court Decision 2004Do6795 Decided February 18, 2005, Supreme Court Decision 2010Do9110 Decided December 23, 2010 (Gong201Sang, 275), Constitutional Court en banc Decision 2001Hun-Ba26 Decided April 25, 202 (HunGong68, 387)

Defendant

Defendant

Law Firm Sejong, Attorneys Yoon Jae-ap et al., Counsel for the plaintiff-appellant

Seoul High Court Decision 2012No4053 decided April 4, 2013

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

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

1. As to the receipt and delivery of money and valuables related to the election campaign

“Election campaign” under Article 135(3) of the Public Official Election Act refers to any active and planned act that is necessary or favorable for the election or winning of a specific candidate, and that is objectively recognized by the intention of promoting the election or defeat. It is distinguishable from the act of preparing an election campaign falling under the internal or procedural preparation for a future election campaign or ordinary political party activities. However, in determining whether an act constitutes an election campaign, it shall be determined whether the act is an act involving the purpose of promoting the election or defeat of a specific candidate by comprehensively observing not only the name of the act, but also the form of the act, i.e., the time, place, method, etc. of the act in question (see Supreme Court Decision 98Do1432, Apr. 9, 199, etc.). In addition, “election campaign” under Article 135(3) of the Public Official Election Act refers to “in relation to election campaign” as motive for election campaign, and it does not require an extensive scope for election campaign, and even if it does not have an influence on the purpose of the election campaign or provision of information.

The lower court acknowledged the facts as indicated in its reasoning based on the adopted evidence, and found the following facts. From March 29, 2012 to April 10, 2012, which was conducted on April 11, 2012 at the 19th National Assembly member election campaign, the 19th election campaign period for the 19th National Assembly members, which was conducted on April 11, 2012, Nonindicted 2 paid KRW 16.5 million to Nonindicted 2 in the election district of Seo-gu and Seo-gu, Seo-gu, Incheon, constitutes a typical election campaign. Nonindicted 2 participated in various election campaign meetings; and Nonindicted 2 presented opinions on the methods of election campaign members or the method of election campaign, support text messages, telephone publicity, etc.; and it was recognized that there was no error of law by misapprehending the legal principles as to an election campaign in accordance with the principle of free evaluation of evidence in light of logical and empirical rules, or by misapprehending the legal principles as alleged in the grounds of appeal.

2. As to the excessive disbursement of election expenses

The burden of proof for the facts constituting an offense prosecuted in a criminal trial is to be borne by a public prosecutor, and the conviction shall be based on evidence with probative value that makes a judge feel true to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). If there is no such evidence, even if there is doubt as to the defendant's guilt, it shall be determined in the interests of the defendant (see, e.g., Supreme Court Decisions 91Do1385, Aug. 13, 1991; 2008Do1096, Jun. 25, 2009).

원심이 적법하게 채택한 증거들과 기록에 의하면, 공소외 1은 2011. 12. 15. 무소속으로 국회의원 예비후보자 등록을 마친 후 선거기획사를 알아보던 중 인천 서구의회 의원 공소외 3의 추천으로 디자인 전문업체인 ‘△△기획’을 운영하고 있던 공소외 2로부터 2012. 1. 초순경 3회에 걸쳐 선거전략, 콘셉트, 이미지 등에 관하여 프레젠테이션을 받은 사실, 피고인은 공소외 2에 대하여 선거기획행위 외에도 홍보물 인쇄를 하는 것으로 견적을 요구하여 공소외 2로부터 수회에 걸쳐 총금액이 다른 내용의 견적서를 받은 끝에 2012. 2. 20.경 총금액을 5,500만 원(부가가치세 별도)으로 하는 것에 대하여 합의하고 공소외 1의 승인을 얻었을 뿐 서면으로 계약서를 작성하지는 않은 사실, [별지 2] 견적서는 이와 같이 총금액을 결정하는 과정에서 피고인이 공소외 2로부터 최종적으로 받은 견적서로서 기획 및 디자인 항목의 내역 중 ‘선거 전략수립, 후보자 스케줄링, 언론대응 및 보도자료 생성, SNS 대응전략 수립, 사무소 개소식 기획, 운동원 소품 기획, 전화홍보 기획, 동영상 제작 기획, 각종 선거 이벤트 기획’은 내역별 가격을 나누지 않고 합계액으로 800만 원이 기재되어 있으나, 그 밖의 내역은 ‘명함기획 및 디자인, 현수막 기획 및 디자인(외벽+내부+길거리), 선거운동원 소품 기획 및 디자인, 각종 소품 기획 및 디자인, 예비 공보물 기획 및 디자인, 본선 공보물 기획 및 디자인, 포스터 기획 및 디자인’으로 나눈 후 각 내역별로 가격이 별도로 기재되어 있는 사실, 이후 공소외 2는 피고인의 요구로 [별지 2] 견적서의 기획 및 디자인 항목의 내역 부분은 그대로 두고 가격 부분을 합하여 3,000만 원으로, 비고란에서 ‘기획료, 출장비 등 회사경비’와 ‘디자이너 4인 인건비(시각디자인, 편집디자인)’ 부분을 삭제하고, 예비 명함 250만 원을 150만 원으로, 본선 명함 250만 원을 240만 원으로, 예비 공보물제작 900만 원을 400만 원으로, 본선 공보물제작 2,000만 원을 1,510만 원으로, 선거벽보 250만 원을 50만 원으로, 각 수정한 [별지 3] 견적서와 [별지 3] 견적서의 기획 및 디자인 항목의 내역 부분을 모두 합하여 선거기획으로 하고, 비고란에 ‘선거 전략수립(컨셉 및 이슈, 메시지 기본공약개발 등)’을 추가로 기재한 [별지 1] 견적서를 작성하였는데 피고인이 강화군 선거관리위원회에 제출한 것은 [별지 1] 견적서인 사실, 공소외 2는 자신이 운영하는 △△기획에서 직접 홍보물 등을 디자인하거나 제작한 것이 아니라 다른 업체에 주문하는 방법을 사용하였는데 2012. 1. 17.경 예비후보자 명함 납품에 100만 원, 2012. 2. 말경 선거사무소 개소식 초대장 납품에 165만 원, 예비후보자 홍보물 제작에 400만 원, 그 후부터 2012. 3. 30.까지 선거공보물, 현수막, 선거벽보, 본선용 명함 등 납품에 1,300만 원, 디자인 전문가인 공소외 4에게 선거홍보물 디자인비로 300만 원을 각 지급한 사실, 공소외 2는 위와 같은 홍보물 제작 외에도 2012. 1. 초순경 610만 원을 들여 위 프레젠테이션을 하였고, 2012. 2.경 공소외 1의 ○○○당 복당 신청 후 인천시당에 가서 관계자를 만나 진행 상황을 확인하고, 이후 공천과 관련한 정보를 확인하여 피고인에게 제공하였으며, 2012. 3. 20.경 선거사무소 개소식의 사회를 보고, 예비후보자 홍보물 제작 과정에서 공약과 정책 등을 제안한 사실, 피고인은 공소외 1의 정치자금 계좌에서 △△기획의 명의상 대표자인 공소외 5의 예금계좌로 2012. 2. 24. 1,000만 원, 같은 날 500만 원, 2012. 3. 14. 1,000만 원, 2012. 3. 20. 1,000만 원, 2012. 3. 29. 600만 원, 2012. 3. 30. 750만 원, 같은 날 300만 원, 2012. 4. 2. 100만 원, 2012. 4. 9. 800만 원 등 합계 6,050만 원을 지급하여 이 사건 계약의 용역대금을 모두 지급한 사실을 알 수 있다.

According to the above facts and facts acknowledged by the court below, Non-Indicted 2 prepared a written estimate on several occasions, which is different from the actual contents of Non-Indicted 2's election planning and promotional materials, the cost of producing various official gazettes is clearly different from the price of a written estimate (attached Form 2), rather than the price of a [attached Form 1] or a written estimate (attached Form 3]. Non-Indicted 2 conducted an election campaign strategy, container bb, and basic drug in addition to the production of public relations materials before the beginning of the election campaign period, and proposed an election campaign office's establishment, social, policy, and pledge, etc. to which Non-Indicted 3 was actually prepared for the election campaign by Non-Indicted 1, 200, and which was actually prepared for the election campaign by Non-Indicted 1, the cost of producing the written estimate for the election campaign to which Non-Indicted 2 was actually paid to the non-Indicted 3's head of the Incheon City Youth Party's office. On the other hand, it is reasonable to present the written estimate or written [Attachment 2].

Nevertheless, the court below determined that the contract of this case was concluded at the beginning (attached Form 2) based on a written estimate, and that the defendant's election planning or consulting expenses as an act of preparing an election campaign as stated therein are only eight million won, and the remaining 2,420,000 won excluding 8 million won (8 million won and value-added 800,000 won) reported as political funds other than election expenses according to a written estimate (attached Form 1) constituted election expenses. The defendant's expenses paid for the general election are 220,026,190 won plus 1,650,000 won as stated in paragraph (1) and 2,42 million won as stated in paragraph (1) and the above 2,420,000 won as well as 197,000,000,000 won for the election district in Seo-gu and Seo-gu, Seoul, which were decided and announced by the strengthened Military Election Commission. The ground of appeal No. 2300,2630,200.

3. Scope of reversal

Since the part of the crime of violation of the Public Official Election Act due to excessive election expenses which the court below found guilty is illegal and should be reversed. Since the part of the above reversal is related to the charge of violation of the Public Official Election Act due to excessive election expenses, the part of the judgment below's violation of the Public Official Election Act due to excessive election expenses should be reversed in its entirety, and the remaining conviction part constitutes a concurrent crime under the former part of Article 37 of the Criminal Act and a single sentence should be sentenced. Accordingly, all of the judgment below should be reversed.

4. Conclusion

The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)