Defendant

Prosecutor

Yang Dong-hun (prosecutions) and courtrooms (public trial)

Attorneys Kim Gi-Gyeong (Korean National Assembly)

Gwangju District Court Decision 2012Gohap1025 Decided June 12, 2015

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

The lower court determined to the effect that the Defendant’s act does not constitute a direct interference with Nonindicted 1’s freedom of intraparty competition because he/she has no right to vote against Nonindicted 1. However, there is a freedom to not participate in the voting even to a person who has no right to vote (the person who is registered as a competition elector without consent). However, the Defendant’s right not to participate in Nonindicted 1’s voting by actually voting in the name of Nonindicted 1 was directly and practically hindered. Accordingly, the lower court’s judgment on the violation of the Public Official Election Act among the facts charged in the instant case is erroneous in the misapprehension

2. Determination

A. Summary of the facts charged

In order to raise the possibility of election of proportional representative members of the National Assembly, the Defendant: (a) opened the online voting system under the name of Nonindicted Party 1, which was known to him/her, and paid the party membership fee, and acquired the right to vote for the candidate supported by the Defendant in his/her name; (b) opened the 10th △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○; and (c) obtained a certification number from Nonindicted Party 1 to Nonindicted Party 1; and (d) obtained a vote from Nonindicted Party 13:13 to 2:2:13 of the same day he/13 of online voting.

B. The judgment of the court below

The lower court determined that the Defendant’s act was limited to the degree of abstract danger that impedes the freedom of the intra-party competition and constitutes an act of directly interfering with the freedom of non-party 1’s intra-party competition itself, and that the Defendant’s act constitutes an act of directly interfering with the freedom of voting in the intra-party competition, even if the Defendant made a vote against Non-party 2, who is proportional representative candidate in the instant intra-party competition by stealing the name of Non-party 1, as in the facts charged, and Non-Party 1 was not guilty of this part of the facts charged.

C. The judgment of this Court

1) Article 237(5)2 of the Public Official Election Act provides that “a person who obstructs the competition campaign or traffic or obstructs the freedom of the intra-party competition by means of deception, deception or other unlawful means” shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 10 million won. Here, “the freedom of the intra-party competition” refers to “the freedom of the intra-party competition” and “the freedom of the intra-party competition” including the freedom of voting in the intra-party competition to elect candidates. Meanwhile, as acts impeding the freedom of the intra-party competition, acts of assault, intimidation, inducement, illegal arrest and confinement in subparagraph 1, 2, acts of interference with the competition campaign or traffic safety in subparagraph 3, acts of compelling anyone who is under his protection, direction or supervision due to business, employment and other relationship to support, recommend or oppose a specific competition candidate, and acts of directly impeding the competition campaign or voting, acts of interference with the competition campaign or acts of causing interference with the competition campaign by means of deception or voting under subparagraph 207 of the same paragraph.

2) As the court below properly explained, Non-Indicted 1 was not a member of ○○○○ Party, and was not in the position to exercise voting rights in the intra-party competition of this case from the beginning of the beginning. The prosecutor asserts that he was obstructed by Non-Indicted 1’s freedom not to participate in the voting, but the freedom not to participate in the voting is premised on Non-Indicted 1’s right to vote. Therefore, the prosecutor’s above assertion is difficult to accept. Accordingly, the above determination of the court below is just, and there is no error of law as otherwise alleged

3. Conclusion

Since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Seosung (Presiding Judge) Kim Sung-ju