[1] The meaning of "contribution act" under Article 112 (1) of the former Public Official Election and Prevention of Unlawful Election Act, and the standard for determining whether a case constitutes "contribution act" under Article 112 (1) of the former Public Official Election and Prevention of Unlawful Election Act

[2] The case holding that if the defendant provided money and valuables to the above volunteer under the oil price after taking a prior election campaign with the help of volunteer without any consideration, it cannot be deemed as a performance of an obligation with due consideration, and thus, it constitutes a contribution act

[1] Articles 112 and 113 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004) / [2] Articles 112 and 113 of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (amended by Act No. 7189 of March 12, 2004)

[1] Supreme Court Decision 96Do500 delivered on November 29, 1996 (Gong1997Sang, 260)

A

Defendant

Law Firm B, Attorneys C et al.

Gwangju High Court Decision 2004No484 decided Oct. 7, 2004

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 113 of the former Public Official Election Act (amended by Act No. 7189, Mar. 12, 2004; hereinafter referred to as the "Public Official Election Act") prohibits a candidate (including a person who intends to become a candidate) and his/her spouse from conducting a contribution act regardless of whether or not the candidate is related to the election in question during the period of restriction on the contribution act. Article 112 (1) comprehensively provides for the types of contribution act subject to punishment in Article 112 (2). Article 112 (2) of the former Public Official Election Act provides that the act of offering money or goods falling under Article 112 (1) of the Public Official Election Act is limited to cases where the act of offering such money or goods is not considered a contribution act, but it does not constitute a kind of act in violation of social order 9.1.6 billion won in light of the provision method of the above Act, and it does not constitute a kind of act in violation of social order 9.1.6 billion won in the event that it does not fall under the category of ordinary order.

Examining the evidence specified in the reasoning of the first instance judgment maintained by the court below in light of the above legal principles and the records, it is clear that the offer of money and valuables to Defendant D does not constitute a customary act or a job-related act by the National Election Commission Regulations and the relevant committee’s decision based on Article 112(2) of the Public Official Election Act. In light of the time and purpose of the Defendant’s act of donation, the relationship between the Defendant and D, etc., it cannot be deemed that the offer of money and valuables to Defendant D does not constitute a case where it is dismissed for the reason that it is extremely ordinary living form within the scope of social order which is historically created, or because it does not violate

2. The term "contribution act" under Article 112 (1) of the Public Official Election Act means that one of the parties provides money, goods, or property benefits without compensation to the other party. Thus, if one of the parties provides money, goods, or property benefits, an act falling under any subparagraph of Article 112 (1) of the same Act shall be made free of charge, and it shall not be made if it is made through legitimate consideration relations such as the performance of obligations. The original volunteer refers to a person who voluntarily conducts an election campaign without compensation. Thus, if the defendant provided money and goods after having a volunteer, who is in genuine meaning of election campaign, participate in an election campaign without compensation, such act constitutes an "contribution act" under Article 112 (1) 1 of the same Act, or even if the defendant agreed to engage in an election campaign with compensation, it is merely an "contribution act" under Article 112 (1) 1 of the same Act, and it is not a "contribution act" under Article 112 (1) 9 of the same Act, and if it is not a true one-time paid for an election campaign.

According to the records, the defendant performed a prior election campaign with D's help without any consideration, and provided money and valuables to D under the oil value name. In light of the above legal principles, it is reasonable to view that such provision of money and valuables constitutes a contribution act under Article 112 (1) of the Public Official Election Act, since it cannot be deemed that such payment of money and valuables is a performance of obligation with due consideration.

3. Therefore, the court below's finding the defendant guilty of the facts charged in this case is just, and there is no error in the misapprehension of facts against the rules of evidence, or in the misapprehension of legal principles as to the prohibition of contribution act or the rejection of illegality, as otherwise alleged in the ground of appeal.

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

Justices Lee Hong-hoon (Presiding Justice)