[1] Whether an act of success or defeat in the intraparty competition for the election of a political party candidate recommended to run in an election for a public office constitutes "election campaign" under the Public Official Election Act (negative in principle), and whether an act constitutes "election campaign" solely on the sole basis that the aforementioned act includes an intent to participate in election or defeat in an election for a public office incidental to the above act (negative)

[2] In a case where any institution, organization, or facility is not established for the purpose of "election campaign" of a specific candidate, but is established for the purpose of causing such candidate to be elected as a candidate in the intra-party competition, whether the establishment, etc. of such similar institution violates Article 89 (1) of the former Public Official Election Act (negative)

[1] Articles 2, 57-2(1), 57-3(1), and 58(1) of the Public Official Election Act / [2] Articles 89(1) and 255(1)13 of the former Public Official Election Act (Amended by Act No. 11485, Oct. 2, 2012); Articles 57-3(1), 87(2), and 255(2)3 of the Public Official Election Act

[1] [2] Supreme Court Decision 2012Do12172 Decided May 9, 2013 (Gong2013Sang, 1061) Supreme Court Decision 2013Do2681 Decided May 9, 2013

Defendant 1 and two others

Defendant 1 and Prosecutor

Law Firm Kcel et al. five others

Gwangju High Court ( Jeonju) Decision 2013No75 decided May 24, 2013

The conviction part of the judgment of the court below against Defendant 1 is reversed, and this part of the case is remanded to the Gwangju High Court. The prosecutor's appeal is dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

A. Relevant legal principles

In full view of the main sentences of Articles 58(1) and 2, and 57-2(1) and the main text of Article 57-3(1) of the Public Official Election Act (hereinafter “Act”), “election campaign” refers to an act for election or defeat in an election for a public office, and the competition campaign for election or defeat in an intraparty competition for the purpose of selecting a candidate to participate in an election for a public office is distinguishable from the above “election campaign”. However, only in exceptional cases where an act for election or defeat in an intraparty competition can be deemed to be an act for election or defeat in an election for a public office, the competition campaign may be deemed to be an election campaign within the extent of exceptional cases where it is deemed that the act for election or defeat in an election for a public office is actually conducted. Furthermore, Article 57-3(1) of the Act provides that “An act for election campaign by giving a political party to a party member and a person other than a party member shall not be conducted by means other than the following competition campaign, and thus, permits not only the one party member or elector in the intra-party competition.”

In addition, the provisions of Article 89(1) of the former Public Official Election Act (amended by Act No. 11485, Oct. 2, 2012; hereinafter “former Act”) aim at maintaining the fairness of election campaign organizations among candidates and preventing excessive competition and waste due to the establishment of various forms of election campaign organizations. However, the structure and legislative purport of the provisions, and the act of the intra-party competition campaign conducted by using a similar organization in violation of Article 57-3(1) of the Act to be elected by a specific candidate in the course of the intra-party competition violates Article 255(2)3 of the Act, and Article 87(1) of the former Act and its legislative purport are similar to prohibiting the establishment of private organizations and other organizations for “election campaign” as provided by Article 87(2) of the former Act, and if the establishment of a certain institution, organization, or facility is not established for the purpose of "election campaign” of a specific candidate, it does not constitute a violation of Article 257(1)2(3) of the former Act.

B. As to the establishment of similar agencies and the prior election campaign related thereto

(1) The lower court found Defendant 1 guilty of all the charges on this part, on the premise that the instant non-party 1’s activities, such as Nonindicted Party 1, established for the purpose of election campaign and carried out at the office of ○○○○○○○ (hereinafter “○○○○”) constituted a similar institution prohibited by Article 89(1) of the former Act, and Defendant 1 conspired with Nonindicted Party 2, 1 in order with Nonindicted Party 1, and conspired to establish a similar institution in ○○○○○○ and to engage in advance election campaign by using it.

(2) However, in light of the aforementioned legal principles and records, the lower court’s determination that the instant non-election organization was established for the purpose of “election campaign” and Nonindicted 1, etc.’s activities relating to ○○○○ is an “election campaign” is difficult to accept.

First of all, according to the records, Defendant 1 registered as a preliminary candidate for the election of △△△△△△△△ on December 16, 201, and was determined as a candidate for the election of this case on March 5, 201 through the interview of the official election examination committee of △△△△△△△△ Party, and elected as a candidate for the △△△△△△ Party on March 12, 2012 through the competition of the so-called national competition method (mar voting and on-site voting). After the election campaign period began from March 29, 2012 to April 11, 2012, Defendant 1 was elected.

However, the summary of this part of the facts charged is that Defendant 1 conspired with Nonindicted 1, etc. to establish and operate a similar institution or similar organization between December 201 and April 10, 2012, and that prior election campaign was conducted from December 2011 to March 28, 2012. Thus, even if most of Defendant 1 appears to be related to the intra-party competition campaign before being elected as the candidate of the △ Party, and the specific contents of “election campaign” thereafter are not publicly known (the facts charged, including Defendant 1’s election before the candidate of the △▽▽ party’s opinion poll, which was difficult for Nonindicted 1 to elect as the candidate of the △ Party, Defendant 1 and Nonindicted 2 to continuously operate the non-indicted 1’s organization by requesting the public prosecutor to do so, the lower court did not find that Nonindicted 1 made an official statement related to the election campaign of this case, which was the public prosecutor’s office’s order. However, the lower court did not specifically recognize that Defendant 1 made an official statement.

In addition, the circumstances indicated by the lower court are difficult to deem that the activities performed by Nonindicted 1, etc. at ○○○ during the aforesaid competition campaign constituted “Exceptional cases where it is deemed that Defendant 1 actually carried out an election campaign” during the election campaign period. In other words, according to the records, it is highly likely that Defendant 1 would be connected with the election from the main election at the time of the instant constituency, while Defendant 1 would not be able to fill in the election at the time of the competition campaign at the time of the competition campaign. Nonindicted 1, etc.’s activities conducted at ○○○○ before the intra-party competition campaign was collected from his lighting staff and delivered them to Defendant 1’s official election campaign. It is difficult to view that such activities were incidental to the first election campaign, which was used as basic material to invite Defendant 1 to support the competition campaign at the first time, and that it is difficult to view that the act of using the former election campaign, which was the first election campaign, constitutes “an official election campaign by using the name of the elector at the time of the competition campaign.”

(3) Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that activities, such as the collection of a master list of Nonindicted Party 1, etc. were “election campaign” and found Defendant guilty of all charges under such premise. In so doing, it erred by misapprehending the legal doctrine on the distinction between the competition campaign and the election campaign, thereby failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal on this point is

C. As to the election campaign using official status

(1) 원심은, 피고인 1이 실질적으로 지배하고 있는 회사인 ◇◇◇◇◇과 ◁◁◁◁◁의 직원들인 공소외 5, 6 및 피고인 2(이하 ‘공소외 5 등’)가 2011년 12월경부터 2012. 4. 10.경까지(피고인 2의 경우 2012. 2. 29.경까지) 피고인 1을 위하여 ‘선거운동’을 한 것이라는 전제하에, 그 판시와 같은 이유로 피고인 1이 조직 내에서의 직무상 행위를 이용하여 그 구성원에 대하여 ‘선거운동’을 하게 한 것이라고 보아, 이 부분 공소사실을 유죄로 인정하였다.

(2) However, in light of the aforementioned legal principles and records, the lower court’s determination that Nonindicted 5’s act was “election campaign” is difficult to accept.

In order to be found guilty of this part of the facts charged, ① the Defendant must use the act within the organization as a matter of duty, ② its members should be “election campaign”, and ③ its members should have carried out “election campaign.” However, in light of the contents indicated in this part of the facts charged as an election campaign involving Nonindicted 5, etc., Defendant 1 does not distinguish whether the act was conducted before or after March 12, 2012 (in the case of Defendant 2, it is evident that it was before March 12, 2012), and there is no clear fact that Nonindicted 5 and 6, on the record, engaged in any specific activity after March 12, 2012.

In addition, among the facts charged in this part, the act appears to be related to Defendant 1’s intra-party competition and Defendant 2’s act, which appears clearly to be prior to March 12, 2012 (e.g., soliciting the registration of electors in the intra-party competition of Nonparty 6). As to whether such act constitutes “an exceptional case in which a competition campaign can be assessed as substantially conducting an election campaign,” the prosecutor failed to prove any particular fact, and the lower court did not present the grounds for its judgment.

(3) Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the act of Nonindicted 5, etc. indicated in the facts charged was “election campaign” and found the Defendant guilty of this part of the facts charged under such premise. In so doing, the lower court erred by misapprehending the legal doctrine on the distinction between the competition campaign and the election campaign, thereby failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal

2. As to the Prosecutor’s Grounds of Appeal

The Prosecutor’s ground of appeal is examined as follows: (a) the violation of the Public Official Election Act against Defendant 1 due to prior election campaign relating to a fence group among the facts charged in the instant case and the violation of the Public Official Election Act against Defendants due to demand and promise to provide benefits related to election campaign; (b) the lower court found the Defendants not guilty by misapprehending the rules of evidence and misapprehending the legal doctrine; and (c) thus, it is unlawful.

However, insofar as the recognition of facts and the selection and evaluation of evidence conducted on such premise do not exceed the bounds of the principle of free evaluation of evidence, it is not sufficient to view the reasoning of the lower judgment as exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules that the lower court did not prove each of the facts charged, even though examining the reasoning of the lower judgment in light of the record. In addition, there is no reason to believe that the lower court erred

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by Defendant 1, the part of the judgment below convicting Defendant 1 among the judgment below is reversed, and this part of the case is remanded to the Gwangju High Court for further proceedings consistent with this Opinion. The prosecutor's appeal is all dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Chang-suk (Presiding Justice)