[1] Whether the deposit of the borrowed-name account constitutes a property subject to registration under Article 4(1) of the Public Service Ethics Act (affirmative)

[2] Whether Article 22 (3) of the Local Education Autonomy Act violates the principle of clarity required by the principle of no punishment without law (negative)

[3] Whether Article 250(1) of the Public Official Election Act, which targets false reporting and disclosure of property owned by a spouse of a candidate for public office, violates the principle of criminal self-responsibility and the principle of no punishment without law (negative)

[4] Whether the act of submitting a false property declaration and making it open to the public is subject to punishment for the crime of publishing false facts under Article 250(1) of the Public Official Election Act (affirmative)

[1] In the case of a borrowed-name account in which the nominal owner of the deposit account merely lends the name thereof and the person who contributed to the deposit account opened the account by himself/herself, and the person who contributed to the deposit account actually controls and manages the deposit account by entirely depositing and withdrawing the deposit on his/her own account and terminating, establishing, etc. the account, the deposit on the borrowed-name account shall be deemed to fall under the property in which the contributor is obligated to file a registration or report under Articles 4(1) and 10-2(1) of the Public Service Ethics Act. This does not change on the ground that the account in the borrowed-name account is the nominal owner and the financial institution, and the party to the deposit contract in the borrowed-name account is the nominal owner and the person who contributed to the account is unable to assert

[2] Article 22(3) of the Local Education Autonomy Act provides that “The provisions concerning the election of Mayors/Do Governors shall apply mutatis mutandis to the election of the Superintendent of an Office of Education to the extent not contrary to the nature of the provisions, except as otherwise provided for in this Act.” The Act on Local Education Autonomy before amendment by Act No. 8069 of Dec. 20, 2006 provides that Articles 51 through 176 (Articles 140 through 161) concerning the election of educational members and the Superintendent of an Office of Education shall be excluded from the "election of the 6th Educational Members and the Superintendent of an Office of Education" until the "election of the 140 through 161) of the 3rd and detailed provisions concerning the election of the 3rd Superintendent of an Office of Education shall not be applied mutatis mutandis to the above provisions concerning the election of the 3rd Superintendent of an Office of Education as well as the provisions concerning the 2nd election of the 3rd Superintendent of an Office of Education which are clearly applicable mutatis mutandis to the above provisions concerning the election.

[3] The legislative purpose of Article 250(1) of the Public Official Election Act is to ensure fairness in election by regulating acts that affect the correct judgment of electors by publishing false facts. Although there is no separate definition on property under the above provision, under Article 49(4)2 of the Public Official Election Act, an applicant for candidate registration is required to submit a report on property subject to registration under the provisions of Article 10-2(1) of the Public Official Ethics Act, and its meaning can be interpreted as the basis for property subject to registration under the Public Official Ethics Act. Furthermore, the above provision is subject to punishment for acts such as “for the purpose of being elected or elected, favorable to candidates,” “public announcement” or “holding.” Furthermore, it cannot be deemed that there is a structural double punishment problem with other provisions that punish a candidate simply with a false or inadequate statement on various matters under the above provision. Moreover, since the above provision is an intentional crime and the purpose of which is to be elected or supervised, it cannot be deemed that a candidate for public office is subject to subjective punishment as well as a candidate for public office’s report and public office’s act.

[4] The purpose of Article 10-2(1) of the Public Service Ethics Act is to establish ethics of public officials as a servant for the public, preventing public officials from increasing their illegal property and ensuring fairness in performing public duties. The information disclosure system of candidates under Article 49(12) of the Public Official Election Act is different from the legislative purpose and function of the two systems, including the following: (a) the candidate’s occupation, academic background, and career, as well as property status, military service records, recent income tax, property tax, aggregate land tax payment and delinquent performance, and criminal records, etc. are disclosed to voters in order to guarantee the citizen’s right to know and exercise of the citizen’s right to vote; and (b) the submission of a false report to a candidate for public office is not subject to criminal punishment in relation to the reporting system of property to a candidate for public office under the Public Service Ethics Act; or (c) the disclosure of property by submitting a false report to the public as part of an application for registration of a candidate under the law.

[1] Articles 4(1) and 10-2(1) of the Public Official Ethics Act / [2] Article 2(3) of the Local Education Autonomy Act, Articles 12 and 13 of the Constitution / [3] Article 250(1) of the Public Official Election Act, Articles 12 and 13 of the Constitution / [4] Article 10-2(1) of the Public Official Ethics Act, Article 49(12) of the Public Official Election Act, Article 250(1) of the Public Official Election Act

[1] [3] Supreme Court Decision 2007Do2598 decided Jun. 28, 2007 / [4] Supreme Court Decision 2004Da78 decided Feb. 18, 2005 (Gong2005Sang, 505)

Defendant

Defendant and Prosecutor

Law Firm, Kim & Lee LLC et al.

Seoul High Court Decision 2009No682 decided June 10, 2009

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. Article 4(1) of the Public Service Ethics Act provides that "The property to be registered by a person liable for registration shall be the property of the person falling under any of the following subparagraphs (including the property actually owned, regardless of its title of ownership, the property contributed to a nonprofit corporation, and the property located in a foreign country; hereinafter the same shall apply)," and Article 10-2(1) provides that "Where a person who wishes to be a candidate for the election of President, National Assembly members, heads of local governments, or local council members, files a report under Article 4 on the property to be registered as of December 31 of the preceding year with the competent election commission, and the competent election commission shall disclose the reported matters of the candidate's property at the time of

In light of the language and purport of the above provisions stipulating the property registration, disclosure of registered property, and disclosure of property formation of a public official and a candidate for public office, regulation on property acquisition using the public service, reporting on gifts of public officials and blind trust, restriction on employment of retired public officials, etc., thereby preventing the increase of public officials’ unlawful property and securing the fairness in performing public service and securing the ethics of public officials as servants, notwithstanding the legislative purpose and title of ownership of the Public Service Ethics Act, and also the property of a non-profit corporation shall be subject to registration or reporting in full. In light of the language and purport of the above provisions, the nominal owner of the deposit account is merely merely lending the title, and the nominal owner of the deposit account shall be deemed to fall under the property in fact owned or reported by the contributor to a financial institution by the holder of the deposit contract, not the nominal owner of the deposit account in a case where the depositor actually controlled or managed the deposit account by opening the account with the head of the Tong and the seal. (See Supreme Court Decision 2007Do2598, Jun. 28, 2007).

In addition, in order to achieve the legitimacy of the legislative purpose that public officials and candidates for public office intend to achieve through property registration or reporting and to achieve the legislative purpose, it is inevitable to consider all the property in fact owned as property subject to registration or reporting regardless of the name owned by them as property subject to the legislative necessity and reasonableness of the legislative purpose, and furthermore, it is impossible to keep the types of property in reality and to grasp its meaning even if it is based on the ordinary interpretation method that does not allow any person to do so, the above provisions cannot be deemed to be in violation of the Constitution because they essentially violate the freedom of conscience of public officials and candidates for public office and violate the excessive prohibition or the principle of clarity (see Constitutional Court Order 2007Hun-Ba72, Mar. 26, 2009).

In the same purport, the court below is just in holding that the borrowed name account of this case, which the Defendant’s spouse, non-indicted 1 opened in the name of pro-dong non-indicted 2 in the manner as stated in its holding, exclusively controlled and managed, constitutes the property subject to registration or report as provided in Articles 4(1) and 10-2(1) of the Public Service Ethics Act, and there is no illegality such as misunderstanding of legal principles as otherwise alleged in the ground of appeal. The court below did not recognize that non-indicted 1 was a party to the borrowed name account, and thus, it is not acceptable to accept the ground of appeal pointing this out on this premise. The Supreme Court precedents, which are contrary to the grounds of appeal, are inappropriate

B. A certain degree of clear legal basis of punishment cannot be uniformly determined, and it should be determined by comprehensively taking into account the unique characteristics of the punishment and the circumstances that caused such legal regulation or the degree of punishment. Since the principle of clarity, which is an expression of the principle of a rule of law, is basically required for legislation on the restriction of fundamental rights, this is because legal stability and predictability cannot be ensured and arbitrary law enforcement can be possible if it is not known that what is prohibited from the meaning of the norm is an act that is permissible. This is because such clarity is especially required in the law of punishment, and it is strictly required in the law of punishment. However, even if the clarity is required, it is not required to be defined daily based on the mere descriptive form and concept of the law of punishment, but even in the ordinary interpretation method of the law that does not allow it, it is necessary to understand that anyone can be aware of the protected legal interest of the law of punishment and the protected interest of the law of punishment and the nature and degree of punishment prohibited by it, and it cannot be seen that there is a change in the form of punishment and form of punishment within 20.

In light of the above legal principles, Article 22 of the Local Education Autonomy Act provides that "the Superintendent of an Office of Education shall be elected according to the ordinary, equal, direct, and secret election of residents," and Article 2 Paragraph (2) provides that "any candidate shall not recommend candidates for the Superintendent of an Office of Education, and the provisions on recommendation and registration of independent candidates shall apply mutatis mutandis to the City/Do Election Commission in writing for 15 days from the election day with the recommendation of electors under the Public Official Election Act, and the provisions on the recommendation and registration under the provisions of Articles 48 and 49 of the same Act shall apply mutatis mutandis to the election of the Superintendent of an Office of Education, except as otherwise provided for in this Act, to the extent that it does not go against the nature of the above provisions on the election of the City/Do Governor," and it is not appropriate to apply the provisions on the punishment of the above Articles 2 and 3 of the Public Official Election Act to the extent that the above provisions on the election are not applied mutatis mutandis to the above revision of the Public Official Election Act."

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the interpretation and application of Article 22 (3) of the Local Education Autonomy Act as otherwise alleged in the ground of appeal.

C. Article 250(1) of the Public Official Election Act provides that “A person who publishes or makes another person publish false facts about the place of birth, status, occupation, career, property, personality, conduct, act, organization to which he/she belongs, etc. of a candidate, his/her spouse, lineal ascendant or descendant, or sibling, or who holds a propaganda document containing false facts in favor of a candidate (including a person who intends to become a candidate) by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, etc. for the purpose of being elected or having another person be elected shall be punished by imprisonment for not more than five years or by a fine not exceeding 30 million won.”

The legislative purport of the above provision is to ensure the fairness of election by publicly announcing false facts and regulating acts affecting the correct judgment of electors. However, according to Article 49(4)2 of the Public Official Election Act, a person who applies for candidate registration shall submit a report on property subject to registration under the provisions of Article 10-2(1) of the Public Official Election Act, which shall be interpreted as the basis for property subject to registration under the Public Official Ethics Act. Furthermore, the above provision is subject to punishment for acts such as "the purpose of being elected or made to be favorable to candidates," "public announcement" or "holding". Thus, it cannot be deemed that there is a structural dual punishment of other provisions punishing acts which merely make false or inadequate statements on various matters under the above provision (see Supreme Court Decision 2007Do2598, Jun. 28, 2007). Furthermore, since the above provision does not have a separate provision on property, it cannot be viewed that a candidate for public office is subject to criminal punishment only when his or her spouse has been elected or has violated the above subjective purpose and purpose of disclosure of property.

Meanwhile, the purpose of Article 10-2(1) of the Public Service Ethics Act is to establish the ethics of public officials as a servant for the people, preventing the increase of illegal property of public officials and ensuring fairness in performing public duties. The information disclosure system of candidates under Article 49(12) of the Public Service Ethics Act is different from the legislative purpose and function (see Supreme Court Decision 2004Do78, Feb. 18, 2005, etc.). Since the two systems are different from the legislative purpose of the Public Service Ethics Act, since the legislative purpose is to guarantee the right to know and the right to vote of the people by disclosing information on the candidate's occupation, academic background, career, etc., as well as property status, military service records, recent income, property tax, aggregate land tax payment and delinquent payment, criminal records, etc. to the elector, the disclosure of property report is not subject to criminal punishment in relation to the public official's property reporting system, or the disclosure of property report is conducted as part of the act of a candidate for registration as prescribed by the law.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the interpretation and application of Article 250 (1) of the Public Official Election Act, as otherwise alleged in the grounds

D. The grounds for appeal by the defendant as to the fact-finding of the court below are merely the purport of disputing the fact-finding of the court below without specifying the fact-finding in violation of the specific logical rules and experience rules. It does not constitute legitimate grounds for appeal.

E. In a case where the court of final appeal rendered a death penalty or imprisonment with or without labor for not less than ten years pursuant to Article 383 subparag. 4 of the Criminal Procedure Act, unless the grounds for final appeal as to the propriety of the sentence are judged, the argument that the fact-finding court misleads the facts on the basis of the sentencing or did not properly examine the circumstances under which the sentencing conditions are attached cannot be a legitimate grounds for final appeal. Furthermore, Articles 132-2(2) and 132-3(1) of the Rules on Criminal Procedure provide that the court of final appeal shall individually specify the purpose of proof and make it difficult to efficiently decide on the issue, clarify the issue in question, and guarantee the opportunity for counter-bruptive preparation of evidence, and the purport of proof is not the legitimate requirements of examination of evidence. If the court decided to grant evidence through the consent of evidence, unless the decision was revoked, an investigation as to the evidence cannot be deemed unlawful on the ground that it did not clearly state the purpose of evidence, as otherwise alleged in the grounds for final appeal.

2. As to the Prosecutor’s Grounds of Appeal

Article 16 of the Criminal Act provides that "the act of misunderstanding that one's own act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding." Whether there exists a justifiable reason should be determined depending on whether the act was not aware of illegality as a result of his failure to perform his/her own act even though he/she could have sufficiently recognized the illegality of his/her act if he/she had failed to perform his/her efforts to avoid it with his/her intellectual ability because he/she had been able to examine, consider, or inquire about the possibility of illegality of his/her act. The degree of efforts necessary to recognize illegality should be determined based on the detailed situation of the act and the individual's awareness ability.

In the same purport, the lower court is justifiable to have determined that the act of borrowing money without interest to raise election expenses without trust in the opinion repeatedly expressed by the election commission and its employees in connection with election expenses constitutes a violation of the Political Funds Act. In so doing, the lower court did not err by misapprehending the legal doctrine on the interpretation and application of Article 16 of the Criminal Act, as otherwise alleged in the ground of appeal.

3. Conclusion

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

Justices Min Il-young (Presiding Justice)