The meaning of "fact that violates the provisions concerning election" and "when it is deemed that the result of the election had influenced" in the concept of election lawsuits prescribed in Articles 222 and 224 of the Public Official Election Act.

An election lawsuit as provided in Articles 222 and 224 of the Public Official Election Act refers to a lawsuit on an election, which is a collective act, and refers to a lawsuit on which the whole or part of an election is invalidated when it is deemed that there has been a violation of the provisions on an election during the series of elections, and thereby having affected the result of the election. Here, “the fact violating the provisions on election” refers to the case where the election commission, which is the subject of the election management, violates the provisions on the management and execution of election affairs, and where there are grounds to view that the election is responsible, such as implied or negligence without taking appropriate corrective measures against a third party’s illegal act, such as a candidate, during the election process. However, it includes other cases where it is deemed that the freedom and fairness of the election is substantially impeded because the elector is unable to vote on the basis of free judgment by a third party’s illegal act, such as a candidate, etc.

Articles 222 and 224 of the Public Official Election Act

Supreme Court Decision 2003No26 Delivered on May 31, 2004

Plaintiff (Appointed Party) 1 and one other (Ynam Law Firm, Attorney Seo-gu, Counsel for the plaintiff-appellant)

National Election Commission Chairperson (Law Firm Sejong, Attorneys Cho Yong-han et al., Counsel for the defendant-appellant)

June 15, 2018

All of the claims of the plaintiffs (appointed parties) are dismissed. Litigation costs shall be borne by the plaintiffs (Appointed parties) and the designated parties.

The 19th presidential election implemented on May 9, 2017 has become void.

1. Basic facts

The following facts are not disputed between the parties:

A. On May 9, 2017, the 19th presidential election (hereinafter “instant election”) was held on May 9, 2017, and the candidate who belongs to a democratic party obtained the largest number of votes and was decided as the elected person.

B. The total number of votes in the instant election is 32,807,908. Of them, the valid vote is 32,672,175, and the invalid vote is 135,733.

(c) Professor Jae-in candidates received 13,423,80 of the valid mark, and 7,852,849 of the Red Doctrine candidates belonging to the Free Republic of Korea, a primary candidate, in the primary election.

2. The plaintiff (appointed)'s assertion

The Defendant changed the ballot papers in the instant election, kept advance polling boxes in a way that is not prescribed in the Public Official Election Act, and illegally used the electronic ballot counting machine, thereby violating the provisions on the management and execution of election affairs. The Defendant committed an error in managing or executing election affairs, by failing to take appropriate corrective measures against the illegal act of violating the Public Official Election Act of the National Assembly members who agreed with the resolution of impeachment, and by implied and neglecting them. The media, the prosecution, and the canlelight Assembly-led force were unable to vote in accordance with free judgment by committing an illegal act in the election process, thereby significantly impeding the freedom and fairness of election.

Since the above act had influenced the result of the instant election, the election of this case is null and void.

3. Determination

A. An election lawsuit under Articles 222 and 224 of the Public Official Election Act is a lawsuit on an election, which is a collective act, and thus refers to a lawsuit on the invalidation of all or part of an election, when it is recognized that there was a violation of the provisions on an election in the series of elections, and thereby affecting the result of the election. Here, “the fact that a violation of the provisions on election” refers to a case where the Election Commission, which is the subject of the election management, violates the provisions on the management and execution of election affairs, and where there is a reason to view that the election is responsible, such as implied or negligence without taking appropriate corrective measures against a third party’s illegal act such as a candidate, etc. in the election process. However, it includes other cases where the elector is unable to vote freely based on free judgment, and thus it is deemed that the freedom of election and fairness of election are substantially impeded. The term “when deemed to have affected the result of the election” means the result of the election, that is, the result of the election, if it did not violate the provisions on an election.

(b) Whether the Election Commission has violated the provisions concerning the management and execution of election affairs;

(1) While the Plaintiff (Appointed Party) asserts that “The ballot paper on the ballot paper with no margin between candidates” has been replaced by “the ballot paper on the ballot paper with a margin between candidates”, there is no evidence to acknowledge it.

In addition, it is not sufficient to recognize that the Defendant issued and used a ballot paper that does not have any margin between the candidates in violation of Article 151(7) of the Public Official Election Act in the instant election, solely with the descriptions of the evidence Nos. 1-3 and 9-11, and there is no other evidence to acknowledge it.

(2) The Plaintiff (Appointeds) asserts that there is no provision allowing the custody of advance polling boxes by ballot counting, but the Defendant violated the provision regarding the management and execution of election affairs by keeping advance polling boxes at any place that may be known to the Defendant.

However, Article 176 of the Public Official Election Act provides that the Gu/Si/Gun election commission shall immediately put in and keep the ballot papers of the voters other than the official voters sent by registered mail, and the advance ballot boxes in which the voters in the jurisdiction cast the ballot papers shall also be kept after checking the sealing and sealing status of ballot boxes.

Therefore, there is no illegality in the management and execution of the defendant's election affairs conducted in accordance with the Public Official Election Act which provides that the competent Gu/Si/Gun election commission shall keep advance polling boxes before the ballot counting date.

(3) The plaintiff (Appointed) asserts that the ballot counting using the electronic ballot counting machine is the management and execution of election affairs in violation of the Public Official Election Act.

However, Article 178 (2) of the Public Official Election Act provides that the Gu/Si/Gun election commission may use machinery or computer system to classify or calculate ballot papers for each candidate to assist in ballot counting affairs.

In full view of the overall purport of the pleadings as a result of the court’s verification, the video files submitted by the Plaintiff (Appointeds) are not the video images recorded in the ballot counting process of the instant election, nor cannot it be deemed that the accurate ballot counting was not made using the electronic ballot counting machine.

Therefore, there is no illegality in the management and execution of election affairs with the defendant using electronic ballot counting devices in accordance with the provisions related to the Public Official Election Act.

(c) Whether an election commission is responsible for an illegal act committed by a third party, such as a candidate, etc., without taking appropriate corrective measures, such as implied or neglect;

The descriptions of Gap evidence Nos. 5, 6, 7, 20, 21 (including the number of pages) are not sufficient to recognize that the National Assembly members who agreed to the resolution of the impeachment and impeachment have committed an illegal act in the election process of this case, and there is no other evidence to acknowledge it.

Therefore, this part of the Plaintiff (Appointed Party)’s assertion is without merit to further examine.

(d) Whether the freedom and fairness of the election has been substantially impeded by a third party, including a candidate, in violation of the same Act;

The statements in Gap evidence Nos. 8, 22 and 24 alone cannot be seen as significantly impeding the freedom and fairness of the election due to press reports, the investigation by the prosecution, and candlelight assemblies conducted prior to the election period of this case. Therefore, the plaintiff (Appointed Party)'s assertion on this part is without merit.

E. The Defendant did not err by violating the provisions on the management and execution of the instant election affairs. The assertion regarding the Plaintiff’s claim on the premise that the “fact that violates the provisions on election”, which is the grounds for invalidation of election, is recognized during the instant election process is not acceptable.

4. Conclusion

The plaintiff (Appointeds)'s claim is dismissed in entirety as it is without merit, and the costs of lawsuit are assessed against the losing parties. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Appointeds: Omitted

Justices Kim Chang-suk (Presiding Justice)