In a case where a member or an employee of the Election Commission recorded a statement without informing the person concerned of the fact that the statement is recorded in the course of investigating an election crime, whether it is admissible as evidence of the recording file collected in accordance with the investigation procedure or the recording record prepared based on it (negative in principle)

Article 272-2 (1) of the Public Official Election Act provides that the members and employees of the Election Commission may ask questions to and investigate relevant persons with respect to the investigation of election crimes, and Article 146-3 (3) of the Public Official Election Management Regulations provides that "the members and employees may, if deemed necessary in the course of conducting the investigation, take necessary measures such as recording of the contents of questions and answers, recording or video recording, photographing, copying or collecting the documents related to election crimes, and taking other necessary measures." Thus, the employees of the election commission may record the statements of the relevant persons for the investigation of

Meanwhile, Article 272-2(6) of the Public Official Election Act provides that when a member or employee of the Election Commission makes an inquiry or investigation with respect to an election crime or demands the submission of data, he/she shall present an identification card indicating his/her status to the person concerned and clarify his/her position and name, and explain the purpose and reason thereof. This is a procedural provision to prevent infringement on the relevant person’s privacy, freedom of privacy, freedom of decision-making on his/her own information, property rights, etc. In so doing, the “purpose and reason of investigation” that the employee of the Election Commission provides prior explanation to the relevant person includes not only the summary of the election crime to be investigated, the reason why

Therefore, in a case where a member or an employee of the Election Commission recorded a statement without informing the relevant person of the fact that the statement is recorded, the recording file or a recording recording recorded based on the same investigation procedure constitutes “Evidence gathered without due process” under Article 308-2 of the Criminal Procedure Act and cannot be used as evidence of guilt in principle.

Article 272-2(1) and (6) of the Public Official Election Act, Article 146-3(3) of the Rules on the Management of Public Officials Election, Article 50-2(1) and Article 172(1)3 of the former Agricultural Cooperatives Act (amended by Act No. 9761 of Jun. 9, 2009), Article 308-2 of the Criminal Procedure Act

Defendant

Prosecutor

Gwangju District Court Decision 2010No2684 Decided February 24, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. A. Article 272-2(1) of the Public Official Election Act provides that the members and employees of the Election Commission may question and investigate relevant persons in relation to the investigation of election crimes. Article 146-3(3) of the Rules on the Management of Public Officials Election provides that “if deemed necessary in the course of conducting the investigation, the members and employees may take necessary measures such as recording of the contents of question and answers, recording, video recording, photographing, copying of documents related to election crimes or taking other necessary measures.” Thus, employees of the election commission may record the contents of statements made by the relevant persons for the investigation of election crimes.

Meanwhile, Article 272-2(6) of the Public Official Election Act provides that when a member or employee of the Election Commission makes an inquiry or investigation with respect to an election crime or demands the submission of data, he/she shall present an identification card indicating his/her status to the person concerned and state his/her position and name, and explain the purpose and reason thereof. This is a procedural provision to ensure that the privacy of the relevant person being investigated in relation to the investigation of an election crime, freedom of privacy, freedom of decision on his/her own information, property rights, etc. are not infringed. Thus, “the purpose and reason of investigation” that an employee of the Election Commission provides prior explanation to the relevant person includes not only the summary of the

Therefore, if a member or an employee of the Election Commission recorded a statement without informing the person concerned of the fact that the statement is recorded, the recording file or a recording recording recorded based on such investigation procedure constitutes “Evidence gathered without due process” under Article 308-2 of the Criminal Procedure Act and cannot be used as evidence of guilt in principle.

B. Based on its adopted evidence, the court below acknowledged the following facts: (a) the Defendant, who was the candidate for the head of ○○ Agricultural Cooperative, and his wife Nonindicted Party 1 visited Nonindicted Party 2 to investigate the suspicion that he provided money and valuables to Nonindicted Party 2, a member of the National Election Commission; (b) the employees of the election commission did not notify Nonindicted Party 2 of the fact that the recording was made, and then recorded the recording file; and (c) on the premise that the employees of the election commission constituted a state agency corresponding to the investigation agency, the election commission applied Article 244-2(1) of the Criminal Procedure Act which provides that the election commission employees of the election commission shall notify Nonindicted Party 2 of the fact of video recording in advance; (d) the act of recording the conversation without notifying Nonindicted Party 2 of the fact of recording constitutes an unlawful act in violation of the above provisions of the Criminal Procedure Act; and (e) the recording file or recording is inadmissible as it constitutes evidence collected without complying with due process; and (e) the court below found the Defendant not guilty of each of Nonindicted Party 2’s evidence collected based on this basis and the evidence.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the part of the lower court’s explanation that Article 244-2(1) of the Criminal Procedure Act applies mutatis mutandis to the investigation procedures conducted by the election commission during the explanation of the reasoning of the lower judgment is not appropriate, but the act of recording a statement to Nonindicted 2 without notifying Nonindicted 2 of the fact of recording in advance is deemed unlawful as an act in violation of the procedure stipulated in Article 272-2(6) of the Public Official Election Act. Thus, as well as the recording file or the recording record of this case, each of the above evidence collected based on the recording constitutes “ evidence collected in violation of due process” as provided in Article 308-2 of the Criminal Procedure Act and cannot be used as evidence for conviction of the facts charged. Furthermore, insofar as the violation of due process constitutes an infringement of due process, it cannot be deemed that it constitutes an exception to the rules on

D. Therefore, the lower court’s conclusion that acquitted the Defendant of this part of the facts charged on the grounds that the admissibility of evidence of each evidence was excluded and that there was no proof of crime is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the legality of investigation procedures under the Public Official Election Act or the scope of application

2. The prosecutor appealed against the guilty portion of the judgment of the court below, but there is no indication in the petition of appeal as to the grounds of appeal nor any statement in the grounds of appeal as to the grounds of appeal.

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

Justices Kim Yong-deok (Presiding Justice)