2013Do2262 Violation of the Public Official Election Act

A person shall be appointed.

Defendant and Prosecutor

Law Firm CI

Attorney CK, CJ

Seoul High Court Decision 2012 - 4051, 2013 early 3 decided February 1, 2013

April 26, 2013

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. As to the assertion of unconstitutionality under Article 230(1)4 of the Public Official Election Act, the principle of clarity, which is the derived principle of the principle of no punishment without the law, means that the act intended to punish a law, punishment for it, and the elements of a crime should be clearly defined so that anyone can anticipate the conflict of the law. Whether the violation is a matter of law must be determined based on whether the contents of the law give sufficient predictability to the criminal, and whether the arbitrary interpretation or application of the law is reasonably excluded by the institution which executes the interpretation of the law in question. However, even if the concept requiring supplementary interpretation is used within a somewhat broad and certain range of the penal provisions, so long as there is no possibility of excessive interpretation at the stage of its application, it does not constitute a violation of the demand for clarity required by the Constitution.

Article 230(1)4 and Article 135(3) of the Public Official Election Act provide that a person who offers, expresses, or promises to offer money, goods, or other benefits in connection with an election campaign except where allowances, actual expenses, or other benefits are provided pursuant to the Public Official Election Act shall be punished. In addition, Article 135(1) and (2) of the Public Official Election Act provides that allowances and actual expenses shall be paid to election campaign managers, etc., and Article 59 of the Public Official Election Act provides that the types and amounts of allowances and actual expenses shall be determined by the National Election Commission. Accordingly, Article 135(2) of the Public Official Election Act provides that allowances and actual expenses of the election campaign managers, etc. shall be types and amounts of actual expenses under Article 135(2) of the Public Official Election Act. As such, Article 230(1)4 of the Public Official Election Act excludes punishment where allowances and actual expenses are provided to persons who are engaged in an election campaign pursuant to Article 135(3) of the Public Official Election Act, and it cannot be seen that the provisions of the Public Official Election Act do not apply to any cases.

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court’s determination that the Defendant was guilty of the instant facts charged (excluding the portion of innocence) on the grounds stated in its reasoning is just and acceptable. In so doing, it did not err by misapprehending the legal doctrine on facts or by misapprehending the rules of logic and experience.

2. As to the Prosecutor’s Grounds of Appeal

Examining the reasoning of the lower judgment in light of the records, the lower court’s judgment reversed the first instance judgment and acquitted the Defendant on the ground that there is no evidence of a crime regarding the violation of the Public Official Election Act due to the offering of money and valuables to AX, among the facts charged in the instant case against the Defendant, on April 2012. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

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 Kim Chang-suk

Justices Yang Chang-soo

Chief Justice Park Poe-dae

Justices Ko Young-han