The meaning of “an elector”, who is the other party to a purchase as provided in Article 230(1)1 of the Public Official Election Act, and the scope of “persons eligible to be recorded in the electoral registry” included therein / Whether a person eligible to be an elector in the area where the election, which is to be affected by a purchase act, constitutes “an elector” who is the other party to the purchase crime (affirmative), and whether a constituency for which the other party is to be elected at the time of the purchase act ought to be demarcated or a valid constituency exists (negative)

Article 230(1)1 of the Public Official Election Act does not limit “an elector who has a right to vote and is eligible to be recorded in the electoral register” to “an elector” who is the other party to a purchase crime, but also includes “an elector”. In this case, “a person eligible to be recorded in the electoral register before the preparation of the electoral register” is not limited to the elector registered in the relevant electoral register as of the record date for the preparation of the electoral register, but is not limited to the elector registered in the relevant electoral register as of the record date for the preparation of the electoral register; even before the record date for the preparation of the electoral register, if the person eligible to be recorded in the electoral register is determined based on

Considering the meaning of the “ elector”, the other party to the crime of purchase, as well as the legislative purport of the above provision, in order to ensure the fairness of election by punishing an act that distorted an individual’s free will regarding an election due to unlawful economic interests, etc., if a person who is able to be an elector in the area where the act of purchase is conducted based on the election day, if the person is eligible to be an elector in the area where the election to be affected by the act of purchase is conducted, then the election district to be elected by the other party is defined at the time of the

Article 230 (1) 1 of the Public Official Election Act

Supreme Court Decision 2005Do2245 Decided August 19, 2005 (Gong2005Ha, 1525) Supreme Court Decision 201Do3824 Decided June 24, 2011

Defendant

Prosecutor

Daejeon High Court Decision 2016No493 decided April 24, 2017

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. The summary of this part of the facts charged selected by the court below is that "the defendant provided entertainment to 23 electors, such as Nonindicted 2, etc. attending the ceremony of opening the election campaign office of Nonindicted 1 held on the same day at the restaurant located in the △△△ Eup in the 20th National Assembly election of the 20th National Assembly members, which was registered as the preliminary candidate in the Dosan City, in order for Nonindicted 1 to be elected in the election of the 20th National Assembly members."

In regard to the election of the local constituency National Assembly member, the lower court premised on the premise that, in applying the provisions of Article 230(1)1 of the Public Official Election Act in relation to the election of the local constituency National Assembly member, only the elector of a specific local constituency in which the person having the effect of purchase becomes a candidate or the person wishing to become a candidate should be deemed included in the scope of “election” as prescribed in the above provision. In addition, the period when the Defendant provided meals to the 23 persons, including Nonindicted 2, etc., such as Nonindicted 2, etc., becomes invalid as the Constitutional Court’s ruling of inconsistency with the Constitution of the Republic of Korea (amended by Act No. 14073, Mar. 3, 2016) of Article 25(2) [Attachment 1] of the former Public Official Election Act becomes invalid as the Constitutional Court’s ruling of inconsistency with the Constitution, and under such legal gap, it cannot be known whether the party receiving money

2. However, it is difficult to accept the above judgment of the court below for the following reasons.

A. Article 230(1)1 of the Public Official Election Act does not limit “an elector” who is the other party to the crime of purchasing, to “an elector who is eligible to be recorded in the electoral registry,” but also includes “an elector”. In this case, “a person eligible to be recorded in the electoral registry before the preparation of the electoral registry” is not limited to the elector who is eligible to be recorded in the electoral registry as of the record date for the preparation of the electoral registry, and even before the record date for the preparation of the electoral registry, if the person eligible to be recorded in the electoral registry is determined based on the overall circumstances, such as the resident registration status and age, even if before the record date for the preparation of the electoral registry, it is reasonable to view “a person eligible to be recorded in the electoral registry” as “a person eligible to be recorded in the electoral registry” (see, e.g., Supreme Court Decisions 2005Do2245, Aug. 19, 2005; 20

Considering the meaning of the “ elector”, the other party to the crime of purchase, as well as the legislative purport of the above provision, in order to ensure the fairness of election by punishing an act that distorted an individual’s free will about election due to unlawful economic benefits, etc., it shall be deemed that if a person is eligible to become an elector in the area where the act of purchase is conducted based on the election day, if the person is eligible to be an elector in the area where the election is to be affected by the act of purchase, it constitutes the “ elector” who is the other party to the crime of purchase, and the constituency to

B. According to the evidence duly admitted, Nonindicted 2, etc., the party to whom the Defendant offered entertainment, is the party to the crime of purchasing as provided in Article 230 (1) 1 of the Public Official Election Act, can be seen as having been registered as a resident in the area of △△△ in the City of Busan, where Nonindicted 1 intended to participate in the election of the 20th National Assembly member. Therefore, in determining based on the above election day, it is sufficient to view that Nonindicted 2, etc., barring any special circumstance, etc., can be deemed as having been a person eligible to be an elector in the above election, and it is reasonable to deem that Nonindicted 2, etc., as a person eligible on the electoral register, is the party to the crime of purchasing as provided in Article 230 (1) 1 of the Public Official Election Act. Moreover, even if the validity of the election district for the National Assembly member became invalidated at the time of offering entertainment and it was not demarcated in a specific election district where Nonindicted 2, etc

Nevertheless, the lower court acquitted Nonindicted 2, etc., who received entertainment on the grounds as indicated in its reasoning, on the erroneous premise that in order to constitute the “ elector” under Article 230(1)1 of the Public Official Election Act, the constituency should be specified at the time of the purchase. In so doing, the lower court did not err by misapprehending the legal doctrine on the meaning of “ elector” under Article 230(1)1 of the Public Official Election Act.

3. For the foregoing reasons, the part of the lower judgment on the violation of the Public Official Election Act due to the purchase by electors should be reversed, and so long as the part on the charge is reversed, the part on the violation of the Public Official Election Act due to the violation of the third party contribution-restricted act and the part on the violation of the Public Official Election Act due to the violation of the commercial competition relation should be reversed together. Accordingly, the

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)