[1] Meaning of “the act of participating in the planning of an election campaign or in the implementation thereof” as one of the prohibited acts against a public official under Article 86(1)2 of the Public Official Election Act

[2] In a case where the defendant who is a public official of the Seoul Metropolitan Office of Education, was indicted for violating the Local Education Autonomy Act on the ground that he participated in the planning of Gap's election campaign or participated in the implementation of the planning by taking advantage of his status by taking advantage of his status, such as ordering the candidate Gap to prepare a visiting event, which is an election campaign for the candidate Gap, at the time of the Seoul Metropolitan Office of Education in connection with the election of the Seoul Metropolitan Office of Education, and instructed the relevant elementary school to prepare for the visiting event, after receiving a report on the visiting event from the side of the elementary school, etc.,

[1] Article 86 (1) 2 of the Public Official Election Act, one of the prohibited acts against a public official, "participation in the planning of an election campaign or in the implementation of such planning" refers to the act of participating in the planning of an election campaign or in the direct implementation, instruction, or instruction of the implementation, of all plans for the efficient implementation of an election campaign, as it does not reach an election campaign to make it elected or not to be elected. It does not necessarily mean only the act of participating in the planning for an election campaign with specific mind. However, in order for a public official to have "participating" in the planning of an election campaign, it shall be proved that he/she directly or indirectly participated in the formulation of a candidate's election campaign by presenting such plans, etc., and only it shall not be concluded that a public official has participated in the formulation of all plans for the efficient implementation of an election campaign solely on the ground that he/she expressed his/her opinion on an election campaign for a candidate.

[2] In a case where the defendant, who is the chief of the Seoul Metropolitan Office of Education at the time of the Seoul Special Metropolitan City Office of Education's election, was prosecuted for violation of the Local Education Autonomy Act on the ground that he participated in the planning of the election campaign or participated in the implementation of the planning by taking advantage of his status by taking advantage of his status such as ordering the preparation of the visiting event of the candidate Gap, who was a candidate Gap at the time of the Seoul Metropolitan Office of Education at the time of the Seoul Metropolitan Office of Education's election, and ordering the preparation for the visiting event of the relevant elementary school Eul, after receiving a report on the visiting event from the side of the elementary school, etc., and received instructions, the court affirmed the judgment below which found the defendant not guilty of the defendant's participation in the planning and implementation of the visiting event solely on the basis that the facts that the public official had contacted with the candidate and consulted with the candidate should be proved in order to recognize that he participated in the planning and implementation of the election campaign or that he had not participated in the planning and implementation of the planning.

[1] Articles 86(1)2 and 255(1)10 of the Public Official Election Act / [2] Article 49(1) of the Local Education Autonomy Act, Articles 86(1)2 and 255(1)10 of the Public Official Election Act, Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2007Do4069 Decided October 25, 2007 (Gong2007Ha, 1882) Supreme Court Decision 2010Do1244 Decided November 28, 2013 (Gong2014Sang, 127)

Defendant

Prosecutor

Law Firm BJ, Attorney Choi Jae-ho

Seoul High Court Decision 2015No624 decided July 10, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 86(1)2 of the Public Official Election Act, one of the prohibited acts against a public official, refers to the act of participating in the planning of an election campaign or in the implementation of such planning without reaching an election campaign to make it elected or not to be elected, and it shall be interpreted that the act of participating in the formulation of all plans for the efficient implementation of an election campaign or in the direct implementation of, or giving instructions to, the implementation of, such plans. It shall not be deemed that only the act of participating in the planning for the purpose of carrying out an election campaign with a specific mind in mind (see, e.g., Supreme Court Decision 2007Do4069, Oct. 25, 2007). However, in order for a public official to have "participating" in the planning of an election campaign, it shall be proved that a public official directly or indirectly participated in the formulation of the candidate's election campaign plan by presenting such election campaign plan, etc., and it shall not be readily concluded that a public official has participated in the formulation of any efficient implementation plan solely on the election campaign for a candidate.

2. (1) In order to recognize that the Defendant participated in the planning of the election campaign by Nonindicted 1, who is the candidate of the Seoul Metropolitan Office of Education, the lower court: (2) on the premise that the Defendant’s contact with Nonindicted 1 and consultation on the planning of the election campaign should be proven to the extent that there is no reasonable doubt; and (3) on the grounds as indicated in its reasoning, there is no evidence to prove that “the Defendant was instructed by Nonindicted 1 to prepare for visiting the Seoul ○ Elementary School and the Seoul △△△ Elementary School” among the facts charged in the instant case, that “the Defendant was given instructions by Nonindicted 1 to prepare for visiting the Nonindicted 1,” and there is no evidence to prove that the Defendant was given contact with Nonindicted 1, who is the director of the Seoul Office of Education, the first office of Education, and the person related to Nonindicted 2, and it is difficult to find that the Defendant was not guilty of the Defendant’s daily participation in the planning of the election campaign or its extension on the basis of Nonindicted 1’s oral participation in the election campaign.

Examining the reasoning of the judgment below in light of the legal principles as seen earlier, it is inappropriate for the court below to determine that the Defendant cannot be deemed to have participated in the planning of Nonindicted Party 1 or in the implementation of such planning solely on the ground that such fact was not proven, on the premise that in order to recognize that the public official participated in the planning of election campaign or in the implementation of such planning, the fact that the public official had

However, examining the reasoning of the judgment below in light of the records, the judgment of the court below that there is no evidence as to the fact that the defendant ordered the non-indicted 3, etc. to prepare for an elementary school visit under the direction of the non-indicted 1 among the facts charged in this case, or there is no evidence as to the fact that the defendant contacted with the non-indicted 1 regarding the planning of the non-indicted 1's elementary school visit event. In addition, in full view of the above circumstances and the reasons for the judgment below and the details of contact between the defendant and the non-indicted 1's each elementary school visit and the non-indicted 2, etc., it is difficult to conclude that a series of acts sent by the defendant alone participated in the planning of the non-indicted 1's elementary school visit event or participated in the implementation of the planning, and therefore, it is difficult to view that the

Therefore, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the act of participating in the planning of election campaign or in the implementation of such planning, etc. under Article 86(1)2 of the Public Official Election Act.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)