Whether the election of proportional representative members of a political party to proportional representative candidates for a National Assembly member constitutes a case where “the election of proportional representative members of a political party is deemed to have influenced the result of the election” as provided in Article 224 of the Public Official Election Act by submitting evidentiary documents on criminal records of which imprisonment was omitted and causing the political party to prepare a candidate list differently” (affirmative)

Article 49(4)5, Article 224 of the Public Official Election Act

Plaintiff Political Party (Law Firm Chang, Attorneys Park Young-ok et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Samung, Attorneys Yang Chang-soo et al., Counsel for the defendant-appellant)

In the 18th National Assembly member election conducted on April 9, 2008, the defendant's party election of the proportional representative National Assembly member is invalid. The litigation costs are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

In full view of the overall purport of pleadings in the statement Nos. 1 through 11 (including additional numbers) and No. 3, in the 18th National Assembly election conducted on April 9, 2008, the Plaintiff political party obtained 651,993 votes among the total number of votes 17,415,920 votes, and obtained 3.80% votes among the total number of votes, and registered as the candidate for the proportional representative National Assembly member of the Plaintiff political party in accordance with such obtained votes ratio, the Defendant was elected by the Defendant. However, in registering as the candidate for the proportional representative National Assembly member of the Plaintiff political party, the Defendant submitted evidentiary documents regarding criminal records of the punishment heavier than the imprisonment without prison labor that was demanded to submit under Article 49(4)5 of the Public Official Election Act to the Plaintiff political party. The above documents were omitted from the imprisonment with prison labor for the Defendant, such as fraud and public conflicts against the Defendant, fabrication of private documents and uttering of the same political party, and as such, the Defendant did not know that his proportional representative was omitted in the Plaintiff’s candidate for his election.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The plaintiff registered as the plaintiff party's proportional representative candidate, and submitted evidentiary documents on criminal records by omitting criminal records against the defendant, such as fraud and conflict with the defendant, while submitting the above documents as if there was no criminal record. As a result, the defendant was elected to the plaintiff party's proportional representative 2 times according to the ratio of the plaintiff party's votes in the election. The defendant's above act constitutes a reason for invalidation of registration under the Public Official Election Act, and thus, the defendant's election is null and void.

(b) Markets:

The election lawsuit stipulated in Articles 223 and 224 of the Public Official Election Act refers to a lawsuit that invalidates the election when it is deemed that there is a violation of the provisions regarding the election in the series of elections, and that the result of the election has influenced the election. In particular, in the election of a National Assembly member, a political party or candidate who has an objection to the validity of election falls under Article 52 (1) within 30 days from the date on which the elected person can file a lawsuit for the election of a National Assembly member, the grounds for invalidation of the election of a National Assembly member, such as where the elected person can file a lawsuit for the election of a National Assembly member, are stipulated in the Public Official Election Act itself. In addition, in the election lawsuit of a National Assembly member, the term "the result of the election" means ultimately the election or defeat, unlike the election of a National Assembly member, the election of a National Assembly member is determined in accordance with the order of candidates set forth by a political party, and thus, a person who intends to register as proportional representative candidate of a National Assembly member, who submits evidentiary documents concerning the election of a National Assembly member 2.

If we look back to the instant case and gather the purport of the entire arguments, the Plaintiff’s political party did not decide the Defendant as a candidate for a National Assembly member or lower the order of priority on the list if it had known that the Defendant had a criminal record of imprisonment without prison labor or heavier punishment, and the Defendant could not be elected to a National Assembly member. As seen earlier, the Defendant’s submission of evidentiary documents on criminal records for which imprisonment with prison labor was omitted constitutes a ground for invalidation of election, and not only constitutes a ground for invalidation of election but also a case that affects the result of election as stipulated in Article 224 of the Public Official Election Act.

Therefore, without examining the remaining arguments, the plaintiff's assertion seeking confirmation of invalidity of the election of the proportional representative National Assembly members by the plaintiff party in the 18th National Assembly election has merit.

3. Conclusion

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

Justices Yang Sung-tae (Presiding Justice)