2017Do21309 Violation of the Public Official Election Act

A

Defendant and Prosecutor

Law Firm BD

Attorney BE, BF, BG, BH

Law Firm AE

Attorney AF

Daejeon High Court Decision 2017No314 decided December 4, 2017

March 29, 2018

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined (the supplemental appellate brief not timely filed).

The reasons are examined to the extent of supplement in case of any kind.

1. As to the Defendant’s ground of appeal

Examining the evidence duly admitted by the lower court and the first instance court in light of the evidence, the lower court’s judgment

The decision that the Office (excluding the part not guilty and the part not guilty) is found guilty is just, and is subject to the disposition.

Therefore, contrary to what is alleged in the grounds of appeal, the court below erred by misapprehending the principle of free evaluation of evidence.

In other words, there is an error in the legal principles on the concept of election campaigns and election campaign relations for a violation of the Public Official Election Act.

There is no error of infringing the defendant's right of defense.

2. As to the Prosecutor’s Grounds of Appeal

A. Regarding violation of the Public Official Election Act due to violation of the restriction on contribution related to the provision of meal expenses

The court below held that the defendant's 'P' that consists of the relatives of Daejeon Metropolitan City E is the amount equivalent to the difference between 'P' and 'P'.

The former Public Official Election Act (amended by Act No. 14073, Mar. 3, 2016) (amended by Act No. 14073, Jan. 26, 2016)

The schedule of the election district for the National Assembly (hereinafter referred to as the "election district table") under the preceding section is the Constitutional Court.

Before a new election district district table is enforced, the decision shall lose its effect by a decision not consistent with the Constitution; and

For the reason that there is no election district list in force as of the time of such act, this part of this

The judgment of the court of first instance which acquitted the defendant on the ground that the facts of lawsuit do not constitute a crime.

B maintained as it is.

In light of the relevant legal principles and records, the above judgment of the court below is just and there is no award.

The Public Official Election Act Article 113(1) fails to exhaust all necessary deliberations as alleged in the grounds for appeal; or

No error by misapprehending the legal principles concerning the restriction on contributions.

B. As to the violation of the Public Official Election Act due to the purchase related to the provision of meal expenses and the inducement for understanding

(1) The summary of this part of the facts charged that was added in the first instance trial is the ancillary, and the defendant is the 20th country.

The same purpose as U cafeteria in Daejeon Metropolitan City T on January 26, 2016 for the election of a meeting member at an election of the meeting member.

to 6 persons, such asO, M, V, X, Y, Q, who are eligible to enter on the Gu electoral registry, KRW 70,00;

A considerable amount of entertainment has been provided."

(2) The lower court, based on the circumstances stated in its reasoning, purchases and interests in the election of the National Assembly members in a local constituency.

Doing that such act may be constituted as a requirement for the existence of a specific election district having legal effect.

Next, according to the Constitutional Court's ruling of inconsistency with the Constitution, the electoral district table becomes effective from January 1, 2016.

As long as the defendant lost, the defendant paid the meal expenses of 0, etc. as stated in this part of the facts charged.

on the ground that the defendant's above act cannot be presented to the election district, and therefore, the defendant's above act is a public official line.

Recognizing that it does not constitute an act of purchase and inducement of understanding under the laws, this part of the facts charged is charged.

The judgment of the court of first instance which acquitted the defendant was affirmed.

(3) However, it is difficult to accept the above determination by the court below for the following reasons.

(A) Article 230(1)1 of the Public Official Election Act provides that "an elector who is the other party to purchase and increase interest."

A person with a voting right who is listed on the electoral register but is not limited to "persons with a voting right"

Before preparing a list of electors, a person eligible for entry in the electoral register is also eligible.

section 33(3) of this title provides that "a person eligible to enter in the electoral register" shall be an elector.

electors registered in the relevant constituency as of the base date for preparation of a list;

The record date shall be based on all the circumstances, including resident registration, age, etc. even before the record date.

(2) If a person is entitled to become the above elector in determining on the basis of the preceding election day

It is reasonable to see that the “person who is eligible to enter” in the electoral registry is “person who is eligible to enter” (Supreme Court Decision 2005 August 19,

Supreme Court Decisions 2005Do2245 and Supreme Court Decision 2011Do3824 Decided June 24, 2011, etc.

In addition to the meaning of the " elector" who is the other party to the above purchase and Inducement by Interest, the legislation of the above provision.

An act that distort the individual's free will on election due to economic interests, etc.

Considering that it is intended to guarantee the fairness of election by punishing a person, the standard of multi-party election day;

(1) the elector in the area where the election to be affected by the purchase

An elector who is the other party to the crime of purchase if he/she is eligible to be a person, and at the time of the purchase.

have become final and conclusive in the constituency to be elected by the other party, or there is a valid constituency.

It is not necessary (see, e.g., Supreme Court Decision 2017Do6510, Dec. 5, 2017).

(B) According to the evidence duly admitted by the court below, the defendant who offered entertainment 0

Six members of the National Assembly, including six members of the National Assembly, who have already reached the age of 19 at the time of provision and who are all defendants;

It can be known that there was a resident registration in the area E of Daejeon Metropolitan City to be held in an election.

C. Therefore, six persons such as those in determining on the basis of the election day, unless there are special circumstances.

A person who can be the elector in the area where the defendant will be elected in the election;

Since there is sufficient room for seeing that six persons, such as this, are qualified for entry in the electoral register, and are public service candidates.

An elector who is the other party to the purchase and inducement by interest provided for in Article 230 (1) 1 of the Act shall be applicable.

It is reasonable to see that the constituency area should be decided by the Constitutional Court at the time of offering entertainment.

A specific election district to be elected by 6 persons, such as those whose effect has been lost, is not yet established.

Even if the state was the situation, it cannot be viewed differently.

(C) Nevertheless, the lower court intended to constitute an elector under Article 230(1)1 of the Public Official Election Act.

on the erroneous premise that the constituency should be specified at the time of such purchase; or

The defendant's above is not a 'voting' by 6 persons, such as 0 who received entertainment from a deceased person, and the defendant's above.

The same act does not constitute an act of inducing purchase and understanding under the Public Official Election Act.

In so determining, the lower court determined that the provision of Article 230(1)1 of the Public Official Election Act is stipulated.

In so doing, the lower court erred by misapprehending the legal doctrine as to the meaning of the elector. The ground of appeal assigning this error is alleged.

for the purposes of this section.

3. Scope of reversal

For the foregoing reasons, an election for public office due to purchase and inducement of understanding related to the provision of meal expenses among the judgment below

The part of violation of law must be reversed, and the meal expenses primarily prosecuted for the destruction of that part.

Violations of the Public Official Election Act due to violation of restrictions on contribution related to provision, and substantive competition relationship

(1) The remainder of convictions must be reversed, and the provision of money and valuables related to election campaigns among the convictions shall be reversed.

The non-guilty part of the reason related to the violation of the Public Official Election Act shall also be reversed together with the non-guilty part.

Therefore, the judgment of the court below should be reversed in its entirety.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion.

It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Kim Jae-han

Justices Lee Dong-won

Justices Park Jong-young