[1] Whether an act prohibited under Article 53 (1) of the former Fisheries Cooperatives Act can be deemed as an act of conducting an election campaign in itself (affirmative) and whether a punishment is imposed pursuant to Article 178 (1) 2 of the same Act only in cases where a person violates Article 53 (1) of the same Act and engages in a separate election campaign (negative)

[2] In a case where the defendant was prosecuted for violating the former Fisheries Cooperatives Act on the ground that he requested the employment of the child Gap by requesting the employment of the child Gap for the purpose of getting Gap to be elected in the election of the head of a district fisheries cooperative, the case holding that the judgment below which acquitted the defendant on the ground that there is no evidence to prove that the defendant did not engage in a separate election campaign such as getting Eul to be elected, etc., and that there is an error of law such as misapprehension of legal principles as to the interpretation of Article 178 (1) 2

[1] Article 53 of the former Fisheries Cooperatives Act (amended by Act No. 10245, Apr. 12, 2010; hereinafter “former Fisheries Cooperatives Act”) provides for an election campaign prohibited under Article 53(1)1 of the same Act. Accordingly, an act of providing an elector or his/her family members with property benefits or a public or private position for the purpose of getting the elector or a specific person elected as a district officer or representative or not elected, constitutes an election campaign prohibited under Article 53(1)1 of the same Act. As such, an act of having the elector or his/her family members elected or not elected in an election for an officer or representative constitutes an election campaign prohibited under Article 53(1)1 of the same Act. In addition, an act of evaluating the act of election campaign by itself for the purpose of getting elected or not elected in an election for an officer or representative ought to be deemed to be in accord with general empirical rules. In addition, if an act of providing or being provided with benefits to the elector, etc. in order to prevent competition and securing the fairness of election, it should not be interpreted that provision under Article 58(1)3).

[2] In a case where the defendant was prosecuted for violating the former Fisheries Cooperatives Act (amended by Act No. 10245, Apr. 12, 2010; hereinafter “former Suhyup Act”), on the ground that he requested the employment of his child Gap by requesting the employment of his child for the purpose of getting him elected in an election for the head of a district fisheries cooperative, the case holding that the judgment of the court below acquitted the defendant on the ground that there is no evidence to acknowledge that the defendant won a separate election campaign for getting a certain person elected or preventing a candidate from being elected as an executive officer for a district fisheries cooperative, and that the court below erred by misapprehending the legal principles on interpretation of Article 178(1)2 of the former Suhyup Act and failing to exhaust all necessary deliberations in order to establish the above crime.

[1] Articles 53 and 178(1)2 of the former Fisheries Cooperatives Act (Amended by Act No. 10245, Apr. 12, 2010) / [2] Articles 53(1) and 178(1)2 of the former Fisheries Cooperatives Act (Amended by Act No. 10245, Apr. 12, 2010)

Defendant

Prosecutor

Incheon District Court Decision 2010No2016 Decided November 19, 2010

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

1. The prosecutor appealed against the guilty portion of the judgment of the court below, but there is no statement in the petition of appeal and the appellate brief stating the grounds for objection to this portion.

2. The grounds of appeal as to the acquittal portion are examined.

A penal provision shall be strictly interpreted and applied in accordance with the language and text, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, a systematic and logical interpretation method that clearly expresses the logical meaning of the text and text in accordance with the legal systematic relationship that takes into account the legislative purpose and purpose of the provision within the meaning of the possible language and text is for the interpretation that is most accessible to the essential contents of the provision, and is in compliance with the principle of no punishment without the law (see Supreme Court Decision 2007Do2162, Jun. 14, 2007).

Article 53 (1) of the former Fisheries Cooperatives Act (amended by Act No. 10245, Apr. 12, 2010; hereinafter “former Suhyup Act”) provides that “any person shall not engage in any of the following acts with the intention of having him/herself or any specific person elected or not elected as a district fisheries officer or representative, or making him/her elected or not elected.” Article 53 (1) of the former Fisheries Cooperatives Act provides money, goods, entertainment, other property benefits, or a public or private position to an elector or his/her family members (Article 1); provision of Article 53 (1) of the same Act provides that any person who intends to become a candidate or a candidate resigns from his/her office shall not be eligible for an election campaign in violation of subparagraph 1 (Article 2); provision of Article 53 (1) of the former Fisheries Cooperatives Act prohibiting any person from becoming a candidate or any person who intends to become a candidate from being elected or from being elected as a district fisheries officer or from being elected (Article 53 (2) (2) through (3)); and (3) of the former Act prohibiting any election campaign from being provided (Article 5).

As above, Article 53 (1) 1 of the former Suhyup Act lists an election campaign prohibited under the following items, and accordingly, the act of providing an elector or a specific person with property benefits or a position of public or private corporation to make him/herself or his/her family members elected or not elected, constitutes an election campaign in itself prohibited under the prohibition of election campaign. It is reasonable to view that an act of making an election campaign elected or not elected in an election for an officer or a representative is in itself in conformity with the general rule of experience to evaluate the act of election campaign. In addition to the legislative intent and purpose of the above provision that prohibits an election from being performed by an elector or a specific person in violation of Article 53 (1) 1 of the same Act in order to prevent the excessive competition and deposit of the election and to ensure the fairness of election, it is reasonable to interpret Article 53 (1) 1 of the same Act as an act of providing benefits to the elector or a specific person, allowing him/her or his/her family members to participate in the election, and allowing him/her to participate in the election.

Nevertheless, the lower court found the Defendant not guilty on the ground that there was no statement in the facts charged regarding Nonindicted 2’s election campaign, which led the Defendant to be elected or a separate election campaign that prevents the Defendant from being elected, and there was no evidence to acknowledge this, on the erroneous premise that the crime is established, the requirement that “the Defendant requires a specific person to be elected as a district fisheries cooperative officer or to be offered a position of construction work for the purpose of preventing him from being elected,” and that “the Defendant is a person who carried out an election campaign,” in addition to the requirement that “the Defendant is to be elected as a district fisheries cooperative officer for the purpose of getting a certain person elected or not elected.”

In light of the above legal principles, the court below should have deliberated on the legitimacy of the defendant's assertion that the non-indicted 2 requested the employment of the child regardless of the head of the association, and should have determined whether to recognize the above facts charged, but the court below acquitted the non-indicted 1 by misapprehending the legal principles on the interpretation of Article 178 (1) 2 of the former Suhyup and Cooperation Act. The ground for appeal pointing this out is with merit.

3. Scope of reversal

As above, there exists a ground for reversal of part of the facts charged in the instant case, and the remaining facts charged should be sentenced to one punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act. Accordingly, the lower judgment cannot be reversed in its entirety.

4. Conclusion

Therefore, the judgment of the court below is reversed, 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 Shin Young-chul (Presiding Justice)