The meaning and scope of "election campaign" under the Public Official Election Act and the standard for determining whether it constitutes an election campaign

Articles 87(1)3, 254(2), and 255(1)11 of the Public Official Election Act

Supreme Court en banc Decision 2015Do11812 Decided August 26, 2016 (Gong2016Ha, 1457) Supreme Court Decision 2016Do1947 Decided October 31, 2017 (Gong2017Ha, 2250)

Defendant 1 and two others

Defendants

Gwangju High Court Decision 2016No419 decided December 8, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on Defendant 1’s grounds of appeal

According to Article 383 subparag. 4 of the Criminal Procedure Act, only cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, and the judgment of the court below affected the conclusion of the judgment or on the grounds that there are substantial grounds to recognize that the sentencing has been extremely unfair. Therefore, in the instant case where a fine is imposed against Defendant 1, the argument that only the fact-finding of the court below is not a legitimate ground for appeal, or that the punishment is too unreasonable is not a legitimate ground for appeal.

2. Judgment on Defendant 2’s grounds of appeal

The argument that the lower court failed to exhaust all necessary deliberations on the basic facts of sentencing or erred beyond the reasonable bounds of sentencing discretion constitutes the allegation of unfair sentencing. As seen above, only in the case where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is pronounced, an appeal may be filed on the ground of unfair sentencing. Therefore, in this case where Defendant 2 was sentenced to a fine with respect to Defendant 2, the allegation that the aforementioned assertion or sentence is too unreasonable is not a legitimate ground of appeal

3. Judgment on Defendant 3’s grounds of appeal

(1) The term “election campaign” under the Public Official Election Act refers to an act that can be objectively recognized by the intention of promoting the election or defeat of a specific candidate in a specific election. The intent of such purpose is not only the express method by which the elector expresses his/her intent to participate in a specific election and asks for support, but also can be recognized in a case where the intention of promoting the election or defeat in a specific election from the perspective of the elector in light of the prevailing circumstances. To deem that there was such intent, the mere fact that the relationship with the election can be inferred or that the elector was motiveed for the election should be based on an objective circumstance that is clearly recognizable by the elector.

In particular, in light of the fact that the Public Official Election Act regulates a specific act at different intervals with the election day, and that even the same act may be perceived differently from the election from the elector’s point of view, depending on the time when the act at issue was conducted, whether an act with such intent ought to be determined by comprehensively observing not only the name of the act, but also the time, place, method, appearance, etc. of the act (see Supreme Court en banc Decision 2015Do1812, Aug. 26, 2016).

(2) The lower court determined that: (a) comprehensively taking into account the circumstances such as ① inviting and mobilization of participants in the event of the ○○ Mountain Association; (b) organizing and proceeding for a very unusual event compared to ordinary mountain activities of the mountain conference; and (c) the method and details of speaking in the order of “time of dialogue”; and (d) the act of events, etc. through the ○○ mountain conference was easily inferred to the extent that it could have easily inferred the intention of promoting the election of the Nonindicted Party in the election of the 20th National Assembly members from the perspective of the electors in light of objective circumstances, in view of the objective circumstances, the act of events, etc. through the ○○ mountain conference became part of the purpose of promoting the election of the Nonindicted Party in the 20th National Assembly members from the perspective of the electors; and (b) determined that Defendant 3 conspired and conspired for the above activities of the 000 mountain conference.

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on election campaigns, contrary

(3) As seen above, only in the case on which death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years was imposed, an appeal may be filed on the ground of unreasonable sentencing. As such, the allegation that the punishment of Defendant 3 is too unreasonable is not a legitimate ground for appeal.

4. Conclusion

The Defendants’ final appeal is dismissed in entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)