Where the outer line of the mark indicated outside the column of the mark is connected only with the mark column of a specific candidate or the name column, etc., the effects of voting (effective).

In light of the purport of each provision of Articles 179(1)4 and 179(3)3 and 180(2) of the Act on the Election of Public Officials and the Prevention of Election Malpractice, even if a mark on any ballot paper is marked outside the column of a candidate, if the outer line of the mark is solely connected with any of the marks, columns, names, etc. of a specific candidate, such mark constitutes an effective mark, and it is obvious that the mark is put in the corresponding candidate.

Articles 179(1)4, 179(3)3, and 180(2) of the Act on the Election of Public Officials and the Prevention of Election Malpractice

Plaintiff (Dongdong Law Firm, Attorneys Park Jong-dong, Counsel for the plaintiff-appellant)

The Chairperson of the Chang Si/Gun election commission

Defendant joining the Defendant (Attorney Kim Hun-hwan, Counsel for defendant-appellant)

Busan High Court Decision 95Do28 delivered on February 16, 1996

The judgment below is reversed. The plaintiff's claim is dismissed. All costs of lawsuit are assessed against the plaintiff.

1. According to the records, the following reasons are as follows.

A. On June 27, 1995, the number of votes obtained by each candidate was added to Plaintiff 5,099, the number of votes obtained by each candidate was added to Plaintiff 11,094, the above Nonparty 24,566, and the Intervenor 5,097, and the election commission was decided as the elected person, pursuant to Article 190(1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election (hereinafter referred to as the “Act”), who was the candidate for democratic freedom, Nonparty 1 (No. 2), the candidate for democracy, and Nonparty 2 (No. 3), the candidate for democracy, and the Intervenor (hereinafter referred to as the “participating”).

B. As a result, the intervenor filed a petition with the Gyeong-do Election Commission on the ground that the second largest number of votes was erroneous in the determination of the validity of the above decision and the calculation of the number of votes obtained, the Gyeong-do Election Commission made a decision that the above decision should invalidate the above decision of the Gyeong-do Election Commission on the ground that the plaintiff could not be the elected person, who was only the second largest number of votes, cannot be the elected person, for the reason that the plaintiff cannot be the elected person, and the above decision that the above decision of the Gyeong-do Election Commission should be invalidated (hereinafter referred to as the "decision to invalidate the above decision of this case") was made through the verification of ballot papers, etc. (hereinafter referred to as the "decision of this case").

2. The reasoning of the judgment below regarding the illegality of each valid vote of the plaintiff and intervenor and the decision of this case is as follows.

A. First of all, 15,838 of the total voting number 16,604 of the above election is valid, and 736 of the above election is invalid, and the number of votes obtained by the plaintiff among the above valid votes is 5,089, and the number of votes obtained by the intervenor is 5,086.

B. In addition, among the above 16,604 votes, the remaining 30 marks (hereinafter referred to as "stamping marks") excluding the above 16,574 marks (15,838 marks + 736 marks) where it is obvious that the filling is invalid among the total voting number 16,604 marks, the 4 of the 16,574 marks (hereinafter referred to as "stamping marks") have been put on the Plaintiff's candidate's column and the above non-party 1's column, but as the 3 marks on the Plaintiff's column and the 10 marks on the Intervenor's column on the Plaintiff's column are put on the 16,604 marks, the 3 and 4 of the 100 marks are valid as the vote for the Plaintiff, and the 10 marks on the 10 marks are valid as the vote for the Intervenor.

However, among the above withholding slips, although it is recognized that the 23th of the examination mark is put under the name of the intervenor, it is recognized that it was not connected with the outer line of the above name column, and that the sum of the 9 marks, such as subparagraphs 1, 2, 8, 9, 17, 18, 25, 30, and 31, are put in line with the division line of the intervenor's mark, and each of the above voting is invalid in accordance with Article 179 (1) 4 of the Act.

In addition, the remaining 17 marks in the above withholding table 30 shall be put again in the column, along with the mark on a specific candidate (Article 7, 13, 22, 26, 28, 33-1, 2, and 34), on which a private person and a party-recommended member are omitted (Article 5), on which a private person and a party-recommended member’s seal are put in the separate line of the chairman of the voting district election management committee (Article 19 and 29), and where it is not easily known that any candidate’s mark is put in the column of the column of the two candidates’ columns, the mark is not put in the column (Articles 6, 11, 12, 16, and 32) with the mark put in the column for the specific candidate (Article 6, 12, 16, and 27). Therefore, all of the above votes are invalid.

C. Therefore, the Plaintiff’s valid votes are 5,091 (5,089 + 2) and the Intervenor’s valid votes are 5,087 (5,086 + 1) and the largest number of votes is not the Intervenor but the Plaintiff. Thus, the instant decision that invalidated the decision on the Plaintiff is unlawful.

3. We examine the grounds of appeal by the defendant litigation performer and the intervenor's attorney.

Article 179 (1) of the Act provides that "the vote falling under any of the following subparagraphs shall be null and void." However, Article 179 (3) of the Act provides that "the vote falling under any of the following subparagraphs shall not be null and void." Article 179 (3) of the Act provides that "the vote shall not become invalid." Article 179 (3) of the Act provides that "the vote shall be put in addition to the column for the mark, and it shall be obvious to which candidate the mark is put in," and Article 180 (2) of the Act provides that "the intention of the elector shall be respected in determining the validity of the vote." In light of the purport of each of the above provisions, even if the mark is put outside of the column for a candidate, if the outer line of the mark is connected exclusively with the mark of a specific candidate's column or name column, it is obvious that the mark is put in contact with the candidate's mark, and thus, it shall be interpreted as invalid. However, if interpretation of the mark as mentioned above leads to the first one of the mark's last act of the candidate.

However, according to the facts duly established by the court below, among the 30 marks of the above withholding table 1, 2, 8, 9, 17, 18, 25, 30, and 31, the total 9 marks of the above withholding table are put in line with the intervenor's mark column. If the facts are the same, it shall be deemed that the 9 marks of the above withholding table are put in line with the intervenor's mark.

Nevertheless, the court below held that all 9 marks of withholding constitute invalid votes on the grounds as stated in its holding. The court below erred in the misapprehension of legal principles as to invalidation of voting, and it is obvious that such illegality affected the conclusion of the judgment, and therefore, there is a reason to point this out.

4. Therefore, the judgment of the court below is reversed, and this case is sufficient for a direct judgment of the party members, and it is decided as follows pursuant to Article 227 of the Act, Article 8 of the Administrative Litigation Act, and Article 407 of the Civil Procedure Act.

A. First of all, according to the result of the examination by the court below, it is clear that the 15,838 of the total voting number of the 16,604 votes of the 16,604 election commission members of the 15,836 votes are valid, the number of votes obtained by the plaintiff among the above valid votes is 5,089 votes, and the number of votes obtained by the intervenor is 5,086 votes.

B. Next, according to the result of the above verification, from among the above 16,574 marks (15,838 marks + 736 marks) excluding the above 16,574 marks (15,838 marks + 736 marks), 4 marks on the remaining 30 marks excluding the Plaintiff’s candidate column and the above Nonparty 1’s column, but marks on the Plaintiff’s column with the Plaintiff’s name as well as the Plaintiff’s column. Although the 3 marks on the Plaintiff’s column and the 10 marks on the Plaintiff’s column are not completely put, it is recognized that the 10 marks on the Plaintiff’s column and the 10 marks are not put on the Plaintiff’s column, it is deemed that the 3 marks and 4 of the examination marks are valid as the vote against the Plaintiff, and that the 10 marks on the

In addition, as examined in the judgment on the grounds of appeal above, the sum of 9 marks, among the 30 marks of the above withholding table, such as subparagraphs 1, 2, 8, 9, 17, 18, 25, 30, and 31 of the 30 marks of the above withholding table, are put in line with the division line of the intervenor's mark column, and all the intervenors are valid marks.

C. Finally, according to the result of the above verification, the remaining 18 marks except the above 12 marks (3 marks + 9 marks) out of the above withholding slips are put below the intervenor's name column, but have not been put on the outer line of the above name column (23 marks), and the marks are put again put on the specific candidate in addition to the column (Articles 7, 13, 11, 22, 26, 28, 33-1, 2, 33-1, 2, 34), the marks are put on the separate line of the chairman of the voting district election management committee and the party-recommended member's seal are omitted (No. 5), and it is hard to see as the marks are put on the separate line of the two candidates' columns, and thus, it falls under subparagraphs 6, 11, 22, 12, 26, 28 (No. 1, 26, 27 and 34).

D. Therefore, the plaintiff's valid votes are the total number of 5,091 votes (5,089 marks + 2 marks) and the intervenor's valid votes are the total number of 5,096 marks (5,086 marks + 1 +9 marks) and the intervenor is the largest number of votes. Although there are errors in the coefficient of votes obtained by the election commission even in Gyeongnam-do, the decision of this case that invalidated the plaintiff's above decision of the election commission, rather than that of the elected person, is justifiable in the conclusion of the decision of this case.

Therefore, the plaintiff's claim of this case asserted that the decision of this case is unlawful is dismissed, and all costs of lawsuit are assessed against the plaintiff, who is the losing party, so decided as per Disposition with the assent of all participating Justices.

Justices Kim Chang-chul (Presiding Justice)