[1] In a case where an organization that does not fall under the organization prohibited from conducting an election campaign under its name or under its representative's name pursuant to Article 87 (1) of the former Election of Public Officials and Prevention of Unlawful Election Act conducts an election campaign under its name or its representative's name without going through an internal decision-making process, whether it constitutes an organization prohibited from conducting an election campaign

[2] The meaning of the establishment and establishment of a similar institution subject to punishment under Articles 255(1)13 and 89(1) of the former Act on the Election of Public Officials and the Prevention of Election Illegal Act or the act of using an existing institution, organization, organization, or facility

[3] The case holding that as a doctor, it is difficult to view that the act to the extent that executives of the Korean Association asked the above candidate's support to the doctor by using their own telephone and the act of attending the current meeting constitutes an act of using the existing Korean Association such as an election campaign office or liaison office that actually deals with election activities or other election affairs

[1] A separate restriction on other methods of election campaign under the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7681 of Aug. 4, 2005) shall not be punished pursuant to Articles 255 (1) 11 and 87 (1) of the same Act even if an election campaign is conducted under the name of the institution or organization other than the institution or organization under Article 87 (1) of the same Act, regardless of whether it had undergone the internal decision making process.

[2] Article 89(1) of the former Act on the Election of Public Officials and the Prevention of Election Malpractice (amended by Act No. 7681 of Aug. 4, 2005) provides for maintaining the fairness in election campaign organizations among candidates, and preventing excessive competition and waste due to the establishment of various forms of election campaign organizations. Articles 255(1)13 and 89(1) of the same Act provide for a candidate (including a person who wishes to become a candidate) other than an election campaign office or election campaign liaison office provided in the same Act, regardless of the name, for the purpose of the candidate (including a person who intends to become a candidate) newly establishing or installing a similar institution, organization, organization, organization, or facility, or using an existing institution, organization, organization, or facility (excluding one election campaign organization established at the central party of a political party and the office of a City/Do party). Thus, even if an act by a perpetrator appears to use the existing institution, organization, or facility for appearance for a candidate, it does not reach the extent of punishment provided in the above provision.

[3] The case holding that as a doctor, it is difficult to view that the acts to the extent that executives of the Korean Association asked the above candidate's support to the above candidates by using their own telephone and the acts to the extent that they participated in the election are actually using the existing Korean Association's election activities or other election-related affairs such as election campaign offices or liaison offices.

[1] Articles 87(1) and 255(1)11 of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7681 of Aug. 4, 2005) / [2] Articles 89(1) and 255(1)13 of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7681 of Aug. 4, 2005) / [3] Articles 89(1) and 255(1)13 of the former Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7681 of Aug. 4, 2005)

[2] Supreme Court Decision 2004Do5197 Decided October 28, 2004, Supreme Court Decision 2004Do7511 Decided January 27, 2005 (Gong2005Sang, 376) Supreme Court Decision 2005Do3932 Decided February 9, 2006

Defendant 1 and one other

Defendant 2 and Prosecutor

Attorney Jeon-hee et al.

Seoul High Court Decision 2006No468 decided May 2, 2006

The part of the lower judgment against Defendant 2 is reversed, and that part of the case is remanded to the Seoul High Court. The Prosecutor’s appeal is dismissed.

1. Article 87(1) of the former Act on the Election of Public Officials and the Prevention of Election Malpractice (amended by Act No. 7681 of Aug. 4, 2005; hereinafter “former Act”) provides that “the following institutions and organizations shall not carry out an election campaign under their names or the name of their representative. (Each subparagraph omitted).” The former part of Article 255(1)11 of the former Act provides that “any person who carries out or causes another person to carry out an election campaign in violation of the provisions of Article 87(1) shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding six million won, apart from the restrictions on other methods of election campaign under the former Act, in cases of an institution and organization other than the institutions and organizations under Article 87(1) of the former Act, regardless of whether it completed the internal decision making process, a person shall not be punished pursuant to the above provision.

Meanwhile, Article 89(1) of the former Public Official Election Act maintains equity in election campaign organizations among candidates, and provides for the prevention of excessive competition and waste due to the establishment of various forms of election campaign organizations (see Supreme Court Decisions 2004Do5197, Oct. 28, 2004; 2004Do7511, Jan. 27, 2005; 2005Do3932, Feb. 9, 2006). Articles 255(1)13 and 89(1) of the former Public Official Election Act provide that an act of establishing a new institution, organization or facility for a candidate (including a person who wishes to be a candidate), other than the election campaign office or election campaign liaison office provided for in the former Public Official Election Act, or an act of using the existing institution, organization or facility for the purpose of punishment of a central party, organization or facility of a political party, regardless of the existing name, can not reach the extent of the act of establishing the central party, organization or facility of a political party.

2. The summary of the facts charged against Defendant 1 is as follows: “Defendant 1, the vice-chairperson of the Korea Medical Association, conspired with Nonindicted 1, the president of the Korea Medical Association, who is the president of the Korea Medical Association, and Nonindicted 2, who is a doctor, asked the president of the Korea Medical Association of the City/Do affiliated with the Korea Medical Association for support and interest in Nonindicted 2 by posting a telephone to the president of the City/Do Medical Association under the Korea Medical Association with the consent of Nonindicted 1, who would be favorable to the medical community, etc. In addition, on April 19, 2005, after attending a meeting of the Seongbuk-si Social Association around 13:00, and attending the meeting of the Sungnam City Medical Association of the Gyeonggi-do Medical Association of the Republic of Korea, the chairman of the Sungnam Medical Association of the Sungnam City, and the chairman of the Sungnam Medical Association of the Korea Medical Association of the Republic of Korea, and Nonindicted 1 visited Nonindicted 2, the president of the Korea Medical Association of the Korea Medical Association to use the existing candidate’s Association of the Association of the Association.”

However, in light of the records, Defendant 1’s act is merely deemed to have requested the head of the City/Do of the Korea Medical Association of Korea to provide support to Nonindicted 2 by using his own phone, or to have attended the meeting with the head of the Korean Medical Association of Seongbuk-si Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of Association of

On the contrary, the court below determined that Defendant 1’s act cannot be deemed as an act violating Article 89(1) of the former Public Official Election Act as a legitimate election campaign act on the ground that it was evident that the intention of the Korean National Assembly member’s re-election in this case was supported by Nonindicted 2 candidate’s election even though prior consent or approval was not granted after the representatives’ general meeting was made, and there is somewhat inappropriate point at the time of its reasoning, but it is just in conclusion that the above Defendant’s act does not violate Article 89(1) of the former Public Official Election Act, and therefore, it is difficult to view that there was an error of law that affected the conclusion

3. The summary of the facts charged against Defendant 2 is that “Defendant 2, who is the doctor of the Sung-nam City society, the chairperson of which, during the election of the National Assembly member, went out by Nonindicted 2, who is the doctor of the Sung-nam City society, called the executive officer, such as Nonindicted 4, and the members of the Sung-nam City society, and urged the members to provide support by calling for support, such as a encouragement visit to Nonindicted 2, thereby encouraging them to pay support money, and allowing them to remit support money to Nonindicted 2 to the candidates’ association, and on April 19, 2005, used the existing organization called the Sung-nam City society for the candidate, such as allowing Nonindicted 2 to search for and take personnel affairs by soliciting him to a meeting of the Sung-nam City society, and allowing him to conduct personnel affairs.”

However, in light of the records, Defendant 2’s act appears to be merely to have requested support or fund-raising by using his own telephone to the members of the Seongdong-si society, and that it was merely a mere degree of allowing Nonindicted 2 to take personnel affairs at a meeting of Bans. In light of the aforementioned legal principles, it is difficult to view that such act merely constitutes the use of the existing Sungnam-si society as an election campaign office or liaison office that actually deals with election activities or other affairs related to election.

Unlike this, the court below found Defendant 2 guilty on the ground that Defendant 2’s act constitutes Defendant 2’s act of using the existing organization called Sungnam City Society. Thus, the court below erred by misapprehending the legal principles on Article 89(1) of the former Act and failing to exhaust all necessary deliberations.

Therefore, without examining Defendant 2’s grounds of appeal, the lower judgment on Defendant 2 ought to be reversed.

4. Therefore, the prosecutor's appeal as to Defendant 1 against the judgment below is dismissed, and the part as to Defendant 2 is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)