[1] The case affirming the judgment below that "one election campaign organization established at each election campaign office of a candidate or preliminary candidate" under Article 89 (1) of the former Public Official Election Act, which prohibits the establishment of a similar organization, is an anti-sexual measure that was excluded from the subject of punishment due to the improper punishment of the previous penal provision, and constitutes "when the act does not constitute a crime due to the alteration of the Acts and subordinate statutes after the crime" under Article 1 (2) of the Criminal Act

[2] Meaning of “pre-election campaign” under the Public Official Election Act, and standard for determining whether an event or assembly of a political party constitutes “ordinary political party activity” excluded from pre-election

[1] Article 1(2) of the Criminal Act; Articles 89(1) and 255(1)13 of the former Public Official Election Act (Amended by Act No. 11485, Oct. 2, 2012); Articles 89(1) and 255(1)13 of the Public Official Election Act / [2] Articles 58(1) and 254(2) of the Public Official Election Act

[2] Supreme Court Decision 2005Do2014 Decided September 9, 2005 (Gong2005Ha, 1646) Supreme Court Decision 2007Do2625 Decided July 26, 2007

Defendant 1 and three others

Defendant 2 and one other and the prosecutor

Law Firm Jeong-dong et al.

Seoul High Court Decision 2012No3023 decided November 21, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 2’s ground of appeal

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted by the lower court, the lower court’s determination that Defendant 2, on the grounds stated in its reasoning, could be deemed as having been at least dolusent perception of the fact that Defendant 3’s support rate was less than 5%, and that there was no error in the misapprehension of legal doctrine, as otherwise alleged in the grounds of appeal.

2. As to Defendant 4’s ground of appeal

A. As to the posting of documents and the contribution act in accordance with the law

Examining the reasoning of the judgment below in light of the relevant legal principles and the evidence duly admitted by the court below, the court below is just in holding that Defendant 4 provided meals and alcoholic beverages to 60 members of “○○ Volunteers” and “△△△ Youth Volunteers” on behalf of Defendant 1 in relation to the 19th National Assembly member election, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

On the other hand, Defendant 4 appealed to post a document in accordance with the unlawful method of the judgment of the court below guilty, but there is no indication of the grounds for appeal in the petition of appeal nor any statement of the grounds for appeal as to the grounds for appeal.

B. Regarding the establishment of a similar agency and the prior election campaign

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that Defendant 4 established a similar organization, organization, etc. prohibited under Article 89(1) of the Public Official Election Act by constituting the executive officers of the above volunteer group, including himself, such as the head of the ○○ Volunteer Group, the vice-head of the group, and the chairperson, vice-chairperson of the Advisory Committee for the Volunteers, and advisory members, and holding the above awareness, as a result of the act accompanying Defendant 1's election in the 19th total group group prior to the election period. In addition, it can be sufficiently recognized that Defendant 4 carried out

Examining the relevant legal principles in light of the records, the above judgment of the court below is just and acceptable, and there is no violation of law by misapprehending the legal principles alleged in the grounds for appeal.

3. As to the Prosecutor’s Grounds of Appeal

A. As to the establishment of a similar institution

Article 255(1)13 of the former Public Official Election Act (amended by Act No. 11485, Oct. 2, 2012; hereinafter “former Act”) provides that a person who establishes and establishes a similar institution shall be punished in violation of the main sentence of Article 89(1). Article 89(1) of the same Act provides that “No person shall establish an election promotion committee, supporters’ association, research institute, counseling center, rest area, or other similar institution, organization, organization, or facility for a candidate (including a candidate), other than an election campaign office or election campaign liaison office under the provisions of Article 61(1) and (2), or use an existing institution, organization, organization, or facility within the scope of “one election countermeasure organization and supporters’ association established at the office of a central party or a City/Do party” under the proviso to Article 61(1) and the proviso to Article 15(1) of the Political Funds Act. However, the same shall not apply to each election campaign office or the Central Party under the Political Funds Act.

With respect to this part of the facts charged that Defendant 1, 2, and 3 conspired to establish a similar institution not under the Public Official Election Act by holding a ceremony at the workshop of this case on February 10, 2012, the lower court determined that the amendment of the Public Official Election Act was reasonable to deem that the above amendment was an anti-sexual measure that was from the ground of unfair punishment of the former Act, which is likely to be interpreted as being subject to punishment, where “one election campaign organization established at the candidate or preliminary candidate’s election campaign office,” based on the following circumstances: (a) the amendment of Article 89(1) of the Public Official Election Act did not have any transitional provision; and (b) the amendment of the former Public Official Election Act constitutes a crime under the proviso of Article 89(1) of the Public Official Election Act, even if there is room to deem that this part of the facts charged constituted a crime under the proviso of the former Public Official Election Act after the amendment of the Act.

Examining the relevant legal principles in light of the facts and records established by the court below, the above decision of the court below is just, in that the election countermeasure organization of this case merely appears to be an internal organization of the election campaign office for the preparation of election, and is not recognized as an organization for election campaign purposes. There is no error of law by misapprehending the legal principles or by omitting the determination as

B. Regarding the prior election campaign

Preliminary election campaign refers to an active and planned act that can be objectively recognized by the intention of the purpose of promoting the success or defeat in the election against the elector from among all acts aimed at the election or defeat of a specific candidate prior to the election campaign period (see, e.g., Supreme Court Decision 2005Do2014, Sept. 9, 2005). The act constitutes an election campaign under the proviso of Article 58(1) of the Public Official Election Act (see, e.g., Supreme Court Decision 2005Do2014, Sept. 9, 2005). If the act is a simple opinion or expression of opinion on the election, preparation for the candidate and election campaign, opinion or expression of opinion on the recommendation of a political party, and ordinary political party activities, it shall be excluded from this issue. Whether an event or assembly of a political party is an ordinary political party activity shall be determined comprehensively by examining the actual contents of the activity, whether the participants only depend on party members, the time and scale of the event (see Supreme Court Decision 2007Do2625, Jul.

According to the reasoning of the judgment below, the court below determined that each of the above acts constitutes an act in collusion with Defendant 1, 2, and 3 on or before March 29, 2012, such as the establishment of the election countermeasure organization in this case, discussions related to election at the Dong council monthly conference, recruitment of party members through the application forms for joining the council, and identification of meetings for Defendant 1’s attendance, etc., and constitutes an election campaign before March 29, 2012, which is the commencement date of official election, and that each of the above acts constitutes an act of preparation for election campaign, or an act of ordinary party activities, and there is insufficient evidence to prove that Defendant 2, etc. provided education to publicize Defendant 1 in connection with the recruitment of application forms for joining the council, or that Defendant 2,

Examining the above legal principles in light of the records, this part of the judgment of the court below is just and acceptable, and there is no violation of law by exceeding the bounds of the principle of free evaluation of evidence in violation of the principle of free evaluation of evidence.

4. Conclusion

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

Justices Kim Chang-suk (Presiding Justice)