[1] Whether the reason why a ballot box of an election of the National Assembly member of the National Assembly is found in a ballot box of an election of the proportional representative National Assembly member is a reason for invalidation of election (negative)

[2] The case holding that it cannot be readily concluded that there was an impact on the result of an election conducted in a few voting districts including an election of the National Assembly members of the National Assembly or in a number of voting districts above merely because the number of ballot papers is less than one or more than one ballot paper is insufficient in a few voting districts

[1] The reason why a lawsuit seeking invalidation of an election as a local constituency National Assembly member is a lawsuit that the constituency election commission contests a defect in the process of deciding a majority of the valid votes in the relevant election district election commission, and the reason why the ballot paper of the election district National Assembly member was discovered in the ballot box of the election district National Assembly member, does not constitute a reason for invalidation

[2] The case holding that it cannot be readily concluded that there was an impact on the result of an election conducted in a few voting districts including an election of the National Assembly members of the National Assembly or in a number of voting districts, solely because the number of ballot papers is less than one or more than one ballot paper is less than one.

[1] Article 223 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Articles 223 and 224 of the Act on the Election of Public Officials and the Prevention of Unlawful Election

[Defendant-Appellee] Plaintiff (Attorney Han Han-sung et al., Counsel for defendant-appellee)

The Chairperson of the Election Commission of the Jin-gun (Attorney Kim Young-young, Counsel for the defendant-appellant)

The Intervenor joining the Defendant (Law Firm Asian, Attorneys Kim Young-hoon et al., Counsel for the defendant-appellant)

September 13, 2004

All of the plaintiff's claims are dismissed. Litigation costs are assessed against the plaintiff.

1. Holding the instant election and determining the elected persons;

On April 15, 2004, the 17th election for the party-united electoral election of the National Assembly member (hereinafter referred to as the "election of this case"), which was conducted on April 15, 2004, the plaintiff 17th election for the party-united election of the National Assembly member of the National Assembly (hereinafter referred to as the "election of this case"), as a result of the plaintiff's candidate and ballot counting with other 5 candidates No. 4, with the recommendation of the Free Democratic Union, 17,702, the plaintiff 17,711, and the plaintiff 17,711, respectively, are added up with the plaintiff 17,00, and the fact that the Jin-Gun election commission decided the intervenor as the elected person does not conflict between the parties.

2. Judgment on the claim for the invalidation of a primary election

A. The plaintiff asserts that the decision on the elected person was found in the ballot box of the proportional representative National Assembly member election (hereinafter referred to as the "election of proportional representative National Assembly member"), and the plaintiff's valid vote is mixed with the intervenor's valid vote or omitted the plaintiff's valid vote in the classification and collection of the list of the candidates on the ballot counting after the voting was finished in the election of the proportional representative National Assembly member, and the decision on the elected person is erroneous in the judgment on the ballot counting, and the above election commission's decision on the election of proportional representative National Assembly member is unlawful, and therefore, it is against the defendant, the chairman of the above election commission, who is the elected person.

B. Comprehensively taking account of Gap evidence 1 to Gap evidence 4, Eul evidence 2-2, Eul evidence 3 and 4-2, and the result of the examination of this court, the ballot counting was conducted after the completion of the voting in this case, the total number of votes is 48,11 and is 47,505, and the invalidation is 606, the valid votes for each candidate are 17,711, 17, 1702; the remaining votes for each of the above reasons are 3 marks in this court's verification process; the remaining votes for each of the intervenors 1 to 4; the remaining votes for each of the intervenors 2 to 70,71; the plaintiff's remaining votes for each of the intervenors 1 to 37; the plaintiff's remaining votes for each of the above combined votes - 24 to 71 to 24, as well as the plaintiff's remaining votes for each of the plaintiff's remaining invalid; the remaining votes for each of the plaintiff's 2 to 371 to -7.2.

C. (1) A lawsuit seeking invalidation of election of a local constituency National Assembly member is not a ground for invalidation of election, which is provided in the Act on the Election of Public Officials and the Prevention of Election Malpractice (hereinafter referred to as the “Act”), and is not a ground for invalidation of election, which is asserted by the Plaintiff in the process of disputeing a defect in the process of deciding the candidate who obtained a majority of the valid votes from the National Assembly member as the elected person.

(2) In addition, according to the result of this court’s examination, there is no circumstance where the Plaintiff’s valid vote is mixed with the Intervenor’s valid vote or the Plaintiff’s valid vote is omitted in the classification and concentration of the votes for each candidate on the ballot counting after the voting was completed in the instant election.

(3) Meanwhile, Article 179 of the Act provides that where the mark is put in two or more columns from Article 179(1) to Article 179(1) to Article 2(3) to Article 179(2) to Article 179(4) to Article 179(4) to Article 179(3) to Article 179(1) to Article 179(1) to Article 179(2) to Article 18(4) to Article 179(3) to Article 179(1) to Article 179(1) to Article 179(3) to Article 179(3) to Article 179(3) to Article 179(1) to Article 179(3) to Article 180(2) to Article 180(2) to Article 180(3) to Article 180(3) to the effect of the voting shall be respected by the elector in determining the validity of the voting.

First, according to the issue as to whether or not the custody slip 3-1 through 5, 10 through 14, 16, 17, 20, and 22 among the dispute table of this case, the custody slip 3-1 through 5, which is added up with the plaintiff's effective mark, shall be included in the plaintiff's appearance, location, number, and name, although the seal tag 3-1 through 5, in addition to the plaintiff's column, is clearly included in the plaintiff's appearance, location, number, and line, it is clear that the plaintiff's valid mark is included in the plaintiff's valid mark in accordance with Article 179 (3) 6 of the Act, and it is just to aggregate it as the plaintiff's valid mark in the ballot counting. Meanwhile, it is clear that the plaintiff's seal is included in the plaintiff's valid mark in addition to the intervenor's column, but it is also valid in the plaintiff's simple ballot counting under Article 179 (3) 3-9 of the Act.

Then, examining the issue as to whether the entry of an intervenor’s 6-6, 8, 9, 15, 19, and 21 in the column of this case is invalid or invalid, it is clear that the entry of an intervenor cannot be seen as falling under Article 179(1)3 of the Act when considering the shape, size, and name of the candidate in addition to the entry of the plaintiff’s 1-6, 8, 9, 15, 19, and 21, in the column of this case, since the entry of an intervenor’s 1-6 box of this case, it cannot be seen as invalid or invalid since the entry of an intervenor’s 7-8, 15, other than the entry of an intervenor’s 1-6 tag of this case’s mark of this case, can not be seen as being in violation of Article 179(1)3 of the Act by deeming that the entry of an intervenor’s 1-6 tag of this case’s 1-6 tag of this case’s mark of this case’s remaining in its original form.

In addition, examining the validity and invalidity of the list 3-7 and 23 added up as the intervenor's valid mark in the ballot counting of the dispute table of this case, it is unlawful to compile it as the intervenor's valid mark even if it falls under Article 179 (1) 4 of the Act, since it is a separate mark on the plaintiff's column and the intervenor's column, and 3-23 is a separate mark on the candidate's column and 5, and it is not identified as the form and location of the mark in the column of the intervenor's column and the candidate's column, and even if it is each invalid mark, it is unlawful to sum it as the intervenor's valid mark.

Furthermore, examining the validity and validity of the list 3-18 of the invitation table compiled as the intervenor's effective mark in the ballot counting among the dispute table of this case, it is justifiable to sum up the above list as the intervenor's valid mark in accordance with Article 179 (3) 1 of the Act, since the elector's seal is recognized with voting aid in light of the outline, size, etc. of the seal imprints indicated in the column for the intervenor's voting.

Finally, examining whether the entry of the list 3-24 included as invalid in the ballot counting among the dispute slips in this case is invalid or invalid, since the entry of the list 3-24 in the separate line between the intervenor's column and the candidate's column 5 is not identified as the form and location, it is invalid in accordance with Article 179 (1) 4 of the Act, and therefore, it is justifiable to sum up the above list as invalid in the ballot counting.

According to the above review, although the above Election Commission partly erred in the determination of the invalid vote at the time of the ballot counting, when calculating the number of valid votes of the plaintiff and the intervenor, the plaintiff's effective votes is 17,69 marks [17,693 marks + 6 marks (2 marks 3-1 through 6)], while the intervenor's effective votes are 17,706 marks [17,692 marks + 14 marks (2 marks 3-8, 10, 22 of the confinement marks)], it is obvious that the intervenor is the largest person who has obtained seven marks higher than the plaintiff who is the next braille, and therefore, the above Election Commission's determination of the intervenor as the winner is eventually justifiable in its result.

D. Therefore, the plaintiff's primary claim disputing the validity of the decision on the elected person on the ground as alleged by the intervenor is without merit.

3. Judgment on the conjunctive claim for invalidation of an election

A. The plaintiff as the ancillary cause of the instant preliminary claim. First, in the election of this case, the number of ballot papers confirmed as a result of the ballot counting after the completion of voting in the voting district, first, in the voting district, in the second ballot district, in the second ballot district, in the second ballot district, in the second ballot district, in the second ballot district, in the middle district, in the third district, in which the number of ballot papers confirmed as a result of the ballot counting is less than one, two, one, one, one, one, and three, in each of the voting districts, and the number of ballot papers confirmed as a result of the ballot counting after the completion of voting in the first, third, and five voting districts is more than the number of ballot papers issued by each candidate, and second, the defendant calculated the number of ballot papers for each candidate before classifying them by voting district, compared with the number of ballot papers issued by each candidate, and then divided them into the voting district, or claimed that the number of ballot papers issued by each candidate is less than the number of ballot papers issued by each candidate, and then, the result of the election commission can be counted into the voting district.

B. First, comprehensively taking account of the entries in Eul evidence 1-1, Eul evidence 2-2, Eul evidence 3, and 4 as well as the result of the examination of this court in the election of this case, it can be acknowledged that the number of ballot papers in the voting district of this case in the 46 voting districts (including the absentee voting district), among the 46 voting districts (including the absentee voting district), is less than one, two, one, one, one, one, one, and three, each of the voting districts in the 3 voting districts in the 1st, two, one, one, and five voting districts in the 1st, three, and five voting districts, but it cannot be determined that the number of ballot papers in each of the above voting districts is more than the number of ballot papers issued, the number of ballot papers issued, the number of ballot papers issued, the number of ballot papers issued, and the number of ballot papers issued, the number of ballot papers issued, and each of the voting districts is less than the number of ballot papers issued, and it cannot be determined that each of the voting districts is less than the voting districts issued.

Next, comprehensively taking account of the whole purport of arguments in Eul evidence 1-2, Eul evidence 2-2, Eul evidence 3, and 4, the defendant opened a ballot box containing general ballot papers (excluding absentee ballot papers) by each voting district and summed up the number of ballot papers by candidates through the ballot counting machine, and calculated the number of votes by each candidate separately through the ballot counting machine, and calculated the total number of votes by each candidate, such as the valid ballot paper (by candidate) and invalid ballot paper in the voting district, and then combined the number of votes calculated as above with that of ballot papers on the voting register. Thus, the defendant can be recognized that the defendant took a method of comparing the above combined number of votes with that of ballot papers on the voting register. Since the number of ballot papers by this method was compared with that of ballot papers on the voting register, it cannot be deemed to violate Article 177 (2) or 178 of the Act, the plaintiff's assertion on a different premise cannot be accepted.

Finally, in full view of the result of the inspection by this court, although the private person of the chairman of the voting district election commission was omitted in the voting paper of this case, it can be recognized that such voting guidance was made by the chairman of the voting district election commission, as alleged by the plaintiff, and in this case where no other reason for invalidation exists, the chairman of the voting district election commission has treated it as a regular ballot paper with respect to the elector's intent, and it cannot be said that there was an error in violation of the election-related laws and regulations of the election commission.

C. Therefore, in the instant election or the said nine voting districts, it cannot be deemed that the result of the election was affected by the violation of the provisions on the election by the said election commission. Therefore, the Plaintiff’s conjunctive claim is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is all dismissed, and the costs of lawsuit are assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jae-chul (Presiding Justice)