[1] The nature of an election lawsuit under Articles 222 and 224 of the Act on the Election of Public Officials and the Prevention of Unlawful Election (i.e., litigation as to an election as a collective act) and the requirements for recognition of an illegal act in the election process

[2] The scope to which the submission and expression of opinions by the support and opposition to the recommendation of a candidate by a political party is allowed

[3] The period and method during which an election campaign by an organization, which can hold an interview and debate by inviting candidates, etc. pursuant to Article 81(1) of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts (amended by Act No. 6265 of Feb. 16, 200, is permitted

[4] The case holding that a non-governmental organization's act of committing a campaign for a certain candidate's defeat by means of a rushness, illegal inducement distribution, etc. against a specific candidate constitutes an illegal act

[5] The case dismissing a request for invalidation of an election on the ground that it cannot be deemed that there was a defect in the management or execution of an election that is likely to be responsible for a civil organization to cope with illegal abortion campaigns by a civil organization, etc., and that it cannot be deemed that the fairness of an election was significantly impeded by a civil organization's abortion

[1] An election lawsuit under Articles 222 and 224 of the Act on the Election of Public Officials and the Prevention of Election Malpractice is a collective act which is a violation of the provisions concerning an election in the course of a series of elections, and where it is recognized that the result of the election has influenced the result of the election, it is recognized that the whole or part of the lawsuit invalidating the election has influenced the result of the election even if the person who run for an election of public officials or a third party has committed an illegal act in the election process, and where it is found that the election commission did not take appropriate measures to correct it, and where there is a difference in the management or execution of the election affairs which may be attributable to the responsibility of the election, or where it is deemed that the fairness of the election has been significantly impeded, it may be deemed that there is a difference in the result of the election, that is, the result of the election, if there was no violation of the provisions concerning the election, that is, the fact that the candidate had actually existed.

[2] According to Article 58 (1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 6265 of Feb. 16, 200), a simple statement or expression of opinion on election was provided that a simple statement or expression of opinion on election does not constitute an election campaign. Since a simple statement or expression of opinion on the recommendation of a candidate of a political party after the amendment of the above Act does not regard it as an election campaign, in a case where the support and opposition on the recommendation of a candidate of a political party exceeds a simple statement or expression of opinion on election before the amendment of the above Act, an election campaign is conducted to the extent that the mere statement or expression of opinion on the recommendation of a candidate exceeds the extent permitted by the Act on the Election of Public Officials and the Prevention of Unlawful Election (Act No. 6265).

[3] According to Article 87 of the Act on the Election of Public Officials and the Prevention of Unlawful Election before the amendment by Act No. 6265 of Feb. 16, 200, an organization excluding a trade union is prohibited from engaging in any act of supporting, opposing, supporting, or opposing a specific political party or candidate under its name or the name of its representative during the election period. However, since the amendment of the above Act provides that an organization that can invite candidates, etc. to hold an interview and debate pursuant to Article 81(1) of the same Act is also an exception organization similar to a trade union, certain organization after the amendment of the above Act provides that it may conduct an election campaign, such as supporting, opposing, or soliciting a specific political party or candidate to support, oppose, or oppose, even though such an election campaign is allowed within the election period, it constitutes an advance election campaign before the commencement of the election campaign period, and even in the method of election campaign, it cannot be permitted by any political party, candidate, etc., by any relevant provision of the election campaign under Chapter 7 of the same Act.

[4] The case holding that a non-governmental organization's act of publishing a specific candidate's selection as a candidate for a abortion and reporting it to the press cannot be deemed unlawful unless it does not constitute a candidate's secret, but it constitutes an unlawful act of making a specific candidate's defeat campaign by means of a pansive, illegal inducement distribution, etc. of the contents that slander a specific candidate

[5] The case dismissing a request for invalidation of an election on the ground that it cannot be deemed that there was a defect in the management or execution of an election that is likely to be responsible for a civil organization to cope with illegal abortion campaigns by a civil organization, etc., and that it cannot be deemed that the fairness of an election was significantly impeded due to a civil organization's abortion campaign

[1] Articles 22 and 224 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [2] Article 58 (1) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 6265 of Feb. 16, 200), Article 58 (1) 3 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [3] Article 87 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 6265 of Feb. 16, 200), Articles 81 (1) and 87 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [4] Articles 58 (1) 3, 81 (1), 87, and 93 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [5] Articles 22 and 224 of the Public Official Election Act

[1] Supreme Court Decision 81Da7 delivered on January 29, 1982 (Gong1982, 311), Supreme Court Decision 96Da59 delivered on November 22, 1996 (Gong1997Sang, 105), Supreme Court Decision 9Da55 delivered on August 24, 199 (Gong1999Ha, 1979), Supreme Court Decision 200Da87 delivered on October 13, 2000, Supreme Court Decision 200Da124 delivered on March 9, 200 (Gong201Sang, 885), Supreme Court Decision 200Da124 delivered on March 9, 201, Supreme Court Decision 2000Da1249 delivered on March 9, 2001 (Gong201, 885, July 26, 2001)

Hanna Co., Ltd. and one other (Attorneys Ahn Hong-soo et al., Counsel for the plaintiff-appellant)

The chairperson of the Gangdong-gu Seoul Election Commission (Attorney Kim Jong-su, Counsel for defendant)

Seoul High Court Decision 201Na14488 decided May 1, 201

December 27, 2001

The plaintiffs' claim for invalidation of election is dismissed. The lawsuit for invalidation of election among the lawsuits in this case is dismissed. The costs of lawsuit are assessed against the plaintiffs.

1. Basic facts

In the election of the 16th National Assembly member in the constituency of the Seoul Special Metropolitan City, which was held on April 13, 2000, the party as a candidate for the recommendation of the plaintiff Kim Jung-il in the 16th election district of the 16th National Assembly member (hereinafter referred to as the "election of this case"), the defendant joining the defendant (hereinafter referred to as the "participating") recommended the Newcheon Democratic Party No. 2 (hereinafter referred to as the " Democratic Party"), the non-party Kim Han-J as a candidate for the recommendation of the Free Democratic Union, and the non-party establishment was recommended as a candidate for the free democratic union, and the non-party establishment was recommended as a candidate for the youth promotion party. As a result of the ballot counting, the fact that the plaintiff Kim Jung-ok was decided as the elected person after obtaining the 37,589 votes of the plaintiff Kim Jung-ok, the 42,997 marks, the 3,410 marks in the 4,784 marks in the 10th election of the plaintiff.

2. The plaintiffs' assertion on the invalidation of election

Although the plaintiffs committed an election campaign in violation of the Act on the Election of Public Officials and the Prevention of Unlawful Election (hereinafter referred to as the "Public Official Election Act"), or an election campaign in favor of a specific candidate was committed by the competent election commission (hereinafter referred to as the "election commission") due to the failure to detect the election, neglect the investigation even after receiving a report, or take any measures, the plaintiffs argued that the violation of the Act on the Management or Execution of Election has influenced the result of the election.

A. As to the act of slandering the candidate of the civil organization, the act of slandering the abortion campaign, etc.

(1) On January 24, 200, the 2000 Korean War Veterans Association (hereinafter referred to as the "Civic Group") selected Plaintiff Kim Jung-ok as a person disqualified for notarial services through the press conference and the Internet on January 24, 200, and on April 3, 200, selected and announced the list of persons subject to the climatic movement and those subject to the climatic movement from among them, and developed the climatic movement by means of the right holder signature, bus speculation, bicycle riding, etc., and the list of those subject to the climatic election movement included Plaintiff Kim Jung-hoon.

(2) The reason why the citizen solidarity included the Plaintiff Kim Jung-il in a person subject to a concentrated abortion campaign was ① anti-human rights, such as speaking consistently at the time of advisory landscape at the time of the incident of advisory advisory organs by the Seocheon Police Station, ② on June 1987, the National Assembly asked the President for an indirect election system, ② on June 2, 1987, Kim Young-sung, who had been the president at the time of questioning the Government of the National Assembly, took a view to destroying anti- democratic and democratic constitutional order, and ③ there was corruption power, such as referring it to the trial for the charge of bribery in relation to the transfer of the school owned by the requesting group, and ③ there was a record of corruption such as referring it to the trial for the charge of bribery.

(3) However, the above reasons: (a) distorted the question at a balanced point of view, such as the Plaintiff Kim Jung-ok’s assertion of the spirit of advisory landscape and the prosecution for detention; and (b) the above reasons are as follows: (c) democracy, which is weak to cope with the war, and democracy which is not able to manage, or the national crisis, should not be restored to this ground. If the election is fair and is equal, the issue of whether it is a direct election or a componism does not have any relation with democratization; and (c) the above reasons are distorted of the statement that concerns the weakening of democracy, such as “There is no relation with democracy and no relation with it; and (d) the progress of the trial was maliciously manipulated even though the Plaintiff Kim Jung-il was not a bribe in relation to the foregoing Seoul High case; and (e) the above reasons are not consistent with the truth.

(4) Nevertheless, the Gangseo-dong Senior Citizens' Joints Association (hereinafter referred to as the "Gangdong Group") in 2000 as a subordinate organization of citizens' Joints Group (hereinafter referred to as the "Gangdong") distribution of illegal inducements, assemblies, progresss, signature campaigns, etc. between February 8, 200 to April 13, 200, ② the Internet homepage on March 13, 200, 5 of the title, 3rd speech, etc., 5 of the title, 200, 200, 300, 200, 200, 200, 300, 200, 200, 200, 200, 200, 200, 200, 200, 200, 20, 200, 20, 30, 30, 30, 30, 30, 200.

(5) In addition, since March 25, 200, citizens' solidarity, lectures and solidarity, participating solidarity, and female organization associations issued an illegal newspaper such as 'total jointly and severally held ceremony' and distributed illegal inducements by reporting to the right holder in the constituency of this case. On April 4, 2000, the executives of the citizen solidarity, such as the election campaign, carried out illegal election campaigns such as a press conference, illegal promotion, distribution of illegal inducements with the content that the executives of the civil solidarity, such as the election campaign in order to slander the plaintiff Kim Jong-ok, and on April 9, 200, carried out illegal election campaigns such as wearing 100 jackets on the flab and moving along the street under the command of the people's solidarity, etc.

B. As to the illegal election campaign, such as the contribution act on the part of the intervenor

On April 4, 200, the Intervenor, its denial, and the vice-chairperson of the Intervenor provided 20 electorates with entertainment, such as a pups, to the electorates in the name of 20 from the Seongdong-gu Seoul Metropolitan Government 'Seobane Madshot Madden Madden (Seoul), and on April 7, 200, the Intervenor provided 70 electors with entertainment, such as a pupscops, to the electorates in the name of 70.

C. As to the assertion of implied acceptance or restraint on the election for the opening of the government office

On April 10, 200, the 3th day before the election day of this case, the government announced a meeting of the South and North Korea, etc. This violates the fair and neutral election, and thus, the National Election Commission, etc. issued a warning and restraint, and took necessary measures, such as harming the government, and requesting the government to reprimand, etc., but it committed a mistake in the management and execution of the election, such as abandoning the execution of fair election management affairs and aiding and abetting the illegal election.

3. Determination on the invalidity of an election

An election lawsuit stipulated in Articles 222 and 224 of the Public Official Election Act refers to a lawsuit invalidating the whole or part of an election, where it is deemed that there has been a violation of the provisions concerning an election in the series of processes of election, such as collective action, and where it is deemed that the result of the election has influenced the result of the election, even if a candidate who runs for an election in a public office or a third party has committed an illegal act in the election process, it is recognized that the degree of such illegal act has influenced the result of the election, and that there is a separate defect in the management or execution of an election affairs that may be responsible for such an act, such as silent and neglecting it without taking appropriate measures to correct it (see Supreme Court Decision 200Da124, Mar. 9, 200) or where it is deemed that the fairness of the election has been considerably impeded (see Supreme Court Decision 200Da216, Jul. 13, 201); and that the result of the election can be deemed to have influenced the result of the election of the candidate's being declared as 94.

We examine the plaintiff's arguments in turn.

A. As to the act of slandering the candidate of the civil organization, the act of slandering the abortion campaign, etc.

(1) According to Article 58(1) of the Public Official Election Act prior to the amendment by Act No. 6265 of Feb. 16, 2000, only a simple statement or expression of opinion on election should not be deemed an election campaign. Since a simple statement or expression of opinion on the recommendation of a political party after the amendment of the above Act does not regard it as an election campaign, if supporting and opposing the recommendation of a political party, an election campaign is conducted within the scope of simple statement or expression of opinion on election, and even within the extent of exceeding the mere statement or expression of opinion on the recommendation of a candidate after the amendment of the Act, an election campaign is permitted to the extent that the mere statement or expression of opinion on the recommendation of a political party exceeds the extent permitted by the Public Official Election Act.

Meanwhile, according to Article 87 of the Public Official Election Act before the amendment, an organization, other than a trade union, is prohibited from engaging in an act of supporting, opposing, supporting, or opposing a specific political party or candidate under its name or the name of its representative during the election period. However, since the amendment of the above Act provides that an organization that may invite candidates, etc. to hold an interview or debate pursuant to Article 81(1) of the Public Official Election Act as an exception organization similar to a trade union, certain organizations after the amendment of the Act are allowed to engage in an election campaign, such as supporting, opposing, supporting, or opposing a specific political party or candidate, but such a period during which election campaign is allowed should be within the election period, but it is illegal if the time of action begins before the election period, and even in the method of election campaign, it cannot be viewed as a way that is prohibited from a political party or candidate, etc., by the relevant provisions on election campaign under Chapter 7 of the Public Official Election Act, even in cases of the period, frequency, place, detailed method, etc., shall not exceed individual and specific criteria.

(2) Comprehensively taking account of the whole purport of oral arguments in evidence Nos. 2 and evidence Nos. 16-8 or video, as alleged by the plaintiffs, citizens' solidarity, etc. specified the candidates for abortion and abortion, including plaintiff Kim Jung-de, before the election day of this case, and disclosed the list along with the explanation of the reasons for the selection through the press conference or Internet, etc., and the promotional material of the above 'total selection', which contains the truth that the above reasons for the selection of the candidates for abortion are true and that the reflects of plaintiff Kim Jung-de, etc. of this case are false, or the 'Maeman kel kel kel elel kel kel kel kel knel kn', which contains production of printed items such as subparagraph No. 2, etc. and distribution of printed items such as the street, campaign, mail, etc. to the voters within the constituency, and excessive support for the election campaign against the plaintiff smalers or to oppose the street campaign including the plaintiff s's.

Of the above-mentioned acts, the act that the citizen solidarity selected and announced on April 3, 200 with a person subject to the abortion, including the plaintiff Kim Heavy, and reported it to the press cannot be deemed unlawful unless it falls under the candidate's secret. However, the remaining acts are generally illegal as acts that deviate from the above legal provision or the Public Official Election Act on the timing and method of election campaign.

(3) Comprehensively taking account of the overall purport of the arguments and arguments by the executives Nos. 1 through 13 and 2, the National Election Commission, etc., upon disclosure of the list of candidates subject to sloping and falling short of the scope prescribed by the Act, urged the interested parties to reflect on the list. The National Election Commission, nationwide citizens’ solidarity, collected materials to strengthen surveillance and surveillance activities on the sloping campaign and provided them to the retired authority on February 8, 200. On the other hand, upon the distribution of printed printed materials to candidates such as the spacifies and the spacifies of Gangnam’s mass and the spacifies, requested for the immediate suspension of distribution, collected evidence on the 0th day of the election campaign, reported the 0th day of the election campaign to the public prosecutor’s office, and demanded the cooperation of the public prosecutor’s office’s 4th day of the election campaign to ban the distribution of illegally printed materials on the 0th day of the 0th day of the election campaign.

(4) Thus, the above facts alone are insufficient to readily conclude that the result of the election had been different from that of the reality if there was not a civil organization’s illegal act, and there is no other evidence to acknowledge it otherwise. In addition, even if the first-aid officer did not change the source of the defeat campaign by the non-governmental organization and did not take measures such as suspension, warning, or removal of illegal facilities in response to an individual violation of the Public Official Election Act, it cannot be deemed that there was a defect in the management or execution of the election that may be responsible for the relevant liability, such as encouraging, implied, or neglecting the illegal election campaign by the non-governmental organization without taking proper corrective measures against the illegal election campaign by the non-governmental organization, and it cannot be deemed that such unlawful election campaign significantly impedes the fairness of the election.

Therefore, this part of the plaintiffs' assertion cannot be accepted.

B. As to the illegal election campaign, such as the contribution act on the part of the intervenor

(1) In full view of the whole purport of the pleadings in each video as evidence Nos. 15 and evidence Nos. 16-1 through 16, the intervenor provided 5 persons, including the Dong-gu Council Chairperson, who could not provide meals with the election campaign workers, etc. on Mar. 31, 200, by making a short-term meal service with the campaign workers, etc. on March 31, 200. On April 7, 200, it is recognized that the intervenor provided a long-term meal service to a large number of voters as alleged by the plaintiffs, but there is no other evidence to prove that there is no other facts.

(2) Meanwhile, comprehensively taking account of the whole purport of the pleading in the statement No. 13-1 and No. 2 of the evidence No. 13-2, the first executive officer discovered the fact that the intervenor offered entertainment on the part of the intervenor, ordered the intervenor to submit the total of the expenses incurred in providing meals to the intervenor on March 31, 200, issued a warning to the person in charge of accounting. On April 7, 200, the first executive officer was sent to the scene of the control, but the police was already investigating, and the fact that the situation was grasped only at the scene.

(3) Therefore, it cannot be deemed that the Intervenor’s above illegal act alone seriously undermines the fairness of the election, and it cannot be said that the above measure of the election commission was aware of the Intervenor’s violation of the election laws and subordinate statutes, and the Intervenor’s implied or neglected it, or that the Intervenor committed any error in the administration or execution of the election.

Therefore, this part of the plaintiffs' assertion cannot be accepted.

C. As to the assertion of implied acceptance or restraint on the election for the opening of the government office

In addition, there is no evidence from the plaintiffs regarding the fact that such a presentation by the government is an act in order to have the intervenor elected or to prevent the plaintiff Kim Jung-sik from being elected, and there is no evidence to prove that there was a substantial obstacle to the fairness of the election, or that there was an error in the management or execution of the election that may be attributable to the candidate.

We cannot accept this part of the plaintiffs' assertion.

4. Judgment on the action for invalidation of election

As seen above, the Plaintiffs filed a joint claim that the intervenor’s decision becomes invalid as the elected person on the same ground without claiming the invalidation of the election and separating the cause of the claim. However, disputing the validity of the elected person’s election on the ground that the election is null and void in violation of the provisions of the Election Act is not permissible by nature in light of the fact that the lawsuit seeking the invalidation of election and the lawsuit seeking the invalidation of election are separately provided for the relevant grounds and methods (see Supreme Court Decision 92No68, Apr. 27, 1993).

5. Conclusion

Therefore, the plaintiffs' claim for invalidation of an election in this case is dismissed as without merit, and the plaintiffs' lawsuit for invalidation of an election is dismissed as illegal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)