[1] Legislative intent of Article 168 of the Public Official Election Act and the method of closing and sealing ballot boxes

[2] The meaning of "when it is deemed that the result of the election had influenced" under Article 224 of the Public Official Election Act

[3] Legislative intent of Article 170(2) of the Public Official Election Act

[1] The legislative purport of Article 168(1) of the Public Official Election Act is to ensure the safety of ballot boxes and to prevent the involvement of election fraud. Therefore, the closing and sealing of ballot boxes shall have the function suitable to achieve the purpose of ensuring the safety of ballot boxes.

[2] Article 224 of the Public Official Election Act "where it is recognized that the result of the election had influenced the result of the election" refers to the case where it is recognized that the result of the election would have been different from that of the candidate in reality if there was no violation of the provision on the election.

[3] The legislative purport of Article 170(2) of the Public Official Election Act is to ensure the safety and reliability of ballot boxes to grant voting witnesses the authority to be accompanied by the process of sending ballot boxes.

[1] Article 168 (1) of the Public Official Election Act / [2] Article 224 of the Public Official Election Act / [3] Article 170 (2) of the Public Official Election Act

[1] Supreme Court Decision 4291No39 delivered on July 8, 1959 / [2] Supreme Court Decision 92No198 delivered on October 16, 1992 (Gong1992, 3156), Supreme Court Decision 2004No54 Delivered on June 9, 2005 (Gong2005Ha, 1160)

Democratic Integration Party (Law Firm Dong-gu, Attorneys Park Jong-soo, Counsel for the defendant-appellant)

The Chairperson of the Gangnam-gu Election Commission (Attorney Seo-dae, Counsel for defendant-appellant)

March 14, 2013

1. The plaintiff's claim is dismissed. 2. Costs of lawsuit are assessed against the plaintiff.

The election of National Assembly members in Gangnam-gu Seoul Metropolitan Government, which was implemented on April 11, 2012, in the election of National Assembly members in a local constituency, shall become void.

1. Basic facts

Comprehensively taking account of the overall purport of the arguments in Gap evidence No. 1, the fact that the Gangnam-gu Seoul Metropolitan Government Election Commission, which was implemented on April 11, 2012, decided the candidate for non-party 1 who was recommended as the representative of Gangnam-gu Election Commission on the basis of the following results of investment and ballot counting in the 19 constituency election for the National Assembly member in the constituency of Gangnam-gu Seoul Metropolitan Government (hereinafter referred to as "instant election").

Gangnam-gu, the number of votes obtained by each candidate (acquisition rate) for the number of votes cast in the constituency name included in the main sentence, shall be 204,733 124,113 Donuri, Nonparty 2, the non-party 3, the non-party 2, who belongs to the non-party 3, the non-party 796 80,620 73,346 (59.47) 48,419 (39.26) 1,552 (1.25), 123,317 (100)

2. The plaintiff's assertion

The plaintiff asserts that the election of this case has the following defects and that the election of this case has influenced the result of the election of this case, so the election of this case is null and void.

A. As a result of the inspection by the ballot-counting witnesses of the total number of 5 ballot boxes which arrive at the ballot-counting place after voting at the instant election, there was a serious error in the closing and sealing of the 21 ballot boxes, and thus, it violated the provisions on the method of closing and sealing of the ballot boxes under Article 168(1) of the Public Official Election Act.

B. The official in charge of voting management, etc. belonging to the Gangnam-gu Election Commission completed the closing and sealing of the ballot box under the witness of voting witnesses after the completion of voting, and prevented voting witnesses from accompanying the voting witness in fact in the process of sending the ballot box by stating that “I return to the house.” Therefore, the voting witnesses violated the provisions on accompanying the process of sending the ballot box by voting witnesses as stipulated in Article 170 of the

C. In the ballot counting process of the instant election, even though Nonparty 2 demanded the Plaintiff to suspend the front of the ballot counting and to preferentially grasp the causes higher than the ballot box, the Gangnam-gu Election Commission did not accept such demand and conducted the ballot counting, and thus, Nonparty 2’s ballot-counting witnesses did not witness the ballot counting process. Although the Gangnam-gu Election Commission acknowledged that there is a serious defect in the ballot box, it took the ballot-counting without the witness of Nonparty 2’s ballot-counting witnesses, it violated Article 114 of the Constitution that provides for the fair management of the election, and Article 181(1) of the Public Official Election Act that allows the ballot-counting witness to witness the ballot-counting in the ballot-counting place.

3. Determination

A. As to the assertion of violation of the provision on the method of closing and sealing ballot boxes

1) The following facts may be acknowledged in full view of Gap evidence 2-1, Eul evidence 3, Eul evidence 5, Eul evidence 7-13 through 27, Eul evidence 49 through 81, Eul evidence 3, Eul evidence 1, 2, 4, and 6, the images of Eul evidence 2-1, Eul evidence 3, Eul evidence 3, Eul evidence 1, 2, 4, and 6, and the results of this court's

A) The ballot box used in the instant election is an assembly ballot box of paper materials, and in the voting district management official in charge of voting management has been produced to assemble and use the ballot box after checking whether it is above the witness of the voting witnesses in the voting district. The specific assembly process is as follows and the combined ballot box model is as follows:

A person shall be appointed.

(1) The inner floor of a ballot box in contact with a ballot box shall be cut off and then fixed by dividing it into the inner floor of the ballot box. (2) The outer floor cover of the floor shall be removed from the tape attached on the rear to be folded and then fixed on the inner floor of the ballot box. The witness shall seal the ballot box with the tape wing line marked on the outer floor of the ballot box and seal it with the official in charge of voting management.

B) Procedures for closing and sealing ballot boxes conducted after voting is completed in a voting district are as follows:

(1) After the voting is finished, the ballot papers of a lid lid which is safe shall be sealed in tapes and sealed by officials in charge of voting management. (2) The outer lids shall be closed and then closed and sealed with one-time locks, and the locks shall be affixed to the ballot box.

C) There was a defect in the closure and sealing of part of the ballot boxes returned from each voting district of the instant election to a ballot-counting place, and the details thereof are as follows.

[Details of Defects in Ballot Boxes]

The details of the defect in the voting district of the sequence contained in the text were 1:1:4; 4; 1; 5; 4; 4; 5; 4; 4; 2; 3; 2; 2; 4; 2; 2; 4; 1; 1; 4; 1; 1; 2; 4; 1; 4; 1; 1; 2; 4; 4; 4; 2; 4; 4; 4; 4; 4; 5; 4; 4; 4; 4; 52; 4; 4; 4; 4; 4; 4; 4; 4; 5; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4; 4;

D) Meanwhile, as a result of the verification by this Court, the tapes attached to the ballot box were removed from the box, and the marks removed due to the effect of contact.

2) Article 168(1) of the Public Official Election Act provides that “official in charge of voting management shall shut the entry of a polling station at the time when the polling station is closed, and when the electors in the polling station finish voting, he/she shall close and seal the slots of the ballot box and locks thereof in the presence of voting witnesses.” The legislative purport of such provision is to ensure the safety of the ballot box and to prevent the involvement of election fraud (see Supreme Court Decision 4291No39, Jul. 8, 1959). Thus, the closing and sealing of the ballot box should be equipped with functions suitable to achieve the purpose of ensuring the safety of the ballot box.

Meanwhile, Article 224 of the Public Official Election Act provides that "the election commission, the Supreme Court, or the high court, which received a petition or complaint, shall decide or render a judgment on the invalidation of all or part of the election or the invalidation of election even if there is a violation of the provisions regarding the election in an election lawsuit," and "the term "when it is deemed that the result of the election had an effect on the result of the election" refers to the case where it is deemed that if there was no violation of the provisions concerning the election, the result of the election would have an effect on the election, that is, the result of the election, that is, the fact that the election of the candidate was actual (see Supreme Court Decisions 92Da198, Oct. 16, 1992; 2004Do54, Jun. 9, 2005, etc.).

A) Since each ballot box mentioned in the list Nos. 1 of the ballot boxes is sealed as a tape all of the ballot boxes, the official in charge of voting management has not affixed seals over the tape and ballot box, there is no possibility to replace the ballot boxes inside the ballot box or add the ballot papers made by falsity inside the ballot box, and thus, it cannot be deemed that there is an error in the management and execution of election affairs that may affect the result of the election.

B) Since each ballot box mentioned in 2 Nos. 168(1) of the Public Official Election Act is deemed to have violated Article 168(1), since each ballot box mentioned in 2 Nos. 168(1) did not seal and seal a lid lid lid, the fact that the outer lids are closed and sealed, there is no possibility to replace the ballot box inside the ballot box or add the ballot box inside the ballot box, and thus, it cannot be deemed that the error in violation of the provision is likely to affect the

C) The ballot box Nos. 3 in the ballot box Nos. 168(1) is deemed to have violated Article 168(1) of the Public Official Election Act because the ballot box Nos. 168 (1) was sealed and sealed by the edge of the lids, and thus, the error of the violation of the provision may not be deemed to have an impact on the election result.

D) The ballot box Nos. 4 in the ballot box Nos. 4 is not only sealed, sealed, and sealed at the edge of a lid, but also sealed and sealed by the outer lids, but it merely is merely sealed to be exposed to a part of the locks, and thus, it cannot be deemed an error in the management and execution of election affairs that may affect the result of an election.

E) The ballot box Nos. 5 in the ballot box Nos. 5 is sealed, sealed, and sealed at the edge of a lid, as well as sealed, sealed, and sealed by the outer lids. However, since the locks are not attached to the ballot box and sealed as tapes for sealing only to the locks, it cannot be deemed an error in the management and execution of election affairs that may affect the result of an election.

F) The ballot boxes indicated in the number 6 of the ballot boxes list Nos. 6 did not have all the seals and seals of the lower portion of the ballot boxes, and accordingly, there is a possibility to replace the ballot boxes inside the ballot boxes through lower parts of the ballot boxes or add the ballot boxes made by falsity inside the ballot boxes. Thus, it constitutes an error in the management and execution of election affairs that may affect the result of the election.

3) Furthermore, we examine whether the error of management and execution of election affairs relating to the fourth ballot box, carried out in the 6th ballot counting sequence of the ballot box defects had influenced the result of the instant election.

In full view of the statements in Eul and 13 and 14 and the overall purport of the arguments, the number of voters of this case in the 4th voting district, the number of voters of this case, the number of valid voters 1,279, the number of invalid voters 1,268, and the number of invalid voters 11, among the effective votes, the fact that the candidates of non-party 1 and the candidates of non-party 2 obtained the 594, and the 645, respectively. In the election of this case, the total number of votes obtained by the candidates of non-party 1 in the election of this case is 73,346 and the total number of votes obtained by the candidates of non-party 2 are 48,419.

Even in cases where the result of the voting in the fourth voting district is most unfavorable to the candidate of Nonparty 1, who is the elected, and the result of the voting in the voting district is most favorable to the candidate of Nonparty 2 who is the elected, Nonparty 1’s candidate: 72,752 (the total number of the votes obtained by Nonparty 1 candidate 73,346 – the number of votes obtained by Nonparty 1’s above voting district of Nonparty 1’s candidate 594); and Nonparty 2’s candidate 49,053 [the total number of votes obtained by Nonparty 2 candidate 48,419 + (the number of votes obtained by Nonparty 1,279 - the voting district above the voting district of Nonparty 2 candidate’s above voting district)] respectively, and it is difficult to deem that the result of the execution of the election of this case did not change in the overall number of votes obtained by Nonparty 1 and Nonparty 2 candidate who is the elected person, and thus, it did not have any influence on the elected person’s price.

4) Therefore, the Plaintiff’s above assertion is without merit.

B. As to the assertion that voting witnesses violated the provision on accompanying the transmission process

Comprehensively taking account of the overall purport of the pleadings in each statement in the evidence Nos. 2-2 through 4, 9, and 10, the official in charge of voting management requested voting management to accompany the voting witnesses to the process of sending ballot boxes to the ballot counting place after completing the voting at the voting district Nos. 1-2, 1-4, 4-4, 1-2, 4-2, and 4-2, one day-time one, one-time one-time one-time one-time one-time one-time one, and the 4-dong voting district, but the voting witnesses refused to send the ballot boxes to the ballot counting place due to personal circumstances, etc., each of the above voting district officials in charge of voting management may recognize the fact that each ballot box was transferred

Article 170(2) of the Public Official Election Act provides that “When sending ballot boxes, only one voting witness for each candidate and two police officers in uniform required for carrying may accompany them.” The legislative purport of such provision is to ensure the safety and reliability of ballot boxes, it should be deemed that voting witnesses are given the authority to be accompanied by the process of sending ballot boxes.

According to the above facts, it is merely the fact that the voting witnesses refuse to participate in the process of sending the ballot box after informing the officials in charge of voting management, etc. that they would be accompanied by the process of sending the ballot box, and thus, the above facts alone cannot be deemed to have interfered with the exercise of the right to be accompanied by the voting witnesses in the process of sending the ballot box. Therefore, the defendant cannot be deemed to have erred in violating Article 170(2) of the Public Official Election Act in managing and executing the election affairs of this case. Thus, the plaintiff'

C. As to the assertion of violation of the provision on ballot-counting witnesses

Comprehensively taking account of the overall purport of the arguments in the statements in Evidence No. 2-1, evidence No. 11, and evidence No. 12, the Plaintiff’s ballot-counting witness raised an objection against the situation of partial closure and sealing of ballot boxes in the process of opening the ballot box at the ballot-counting place for the instant election. The Gangnam-gu Election Commission shall withhold the opening of 17 ballot boxes except four ballot-counting witnesses that have no problem from among the 21 ballot boxes raised an objection, and proceed with the remaining ballot-counting, while holding the relevant officials in charge of voting management, 26 voting officials in charge of voting management, 49 voting witnesses, and after holding a meeting of the Committee, determine to open the 17 ballot boxes whose opening is postponed because it is judged that there is no possibility of election illegality as a result of deliberation by the Committee. Accordingly, Nonparty 2’s ballot-counting witness leaves the ballot-counting place after photographing photographs of the accident ballot-counting witness, and the Gangnam-gu Election Commission may recognize the fact that the ballot-counting has been completed by going out the following ballot-counting by Nonparty 2 candidates.

According to the above facts, the Commission and the ballot-counting witnesses voluntarily leave the ballot-counting place on the grounds that their demand is not accepted, and the defendant forcedly deprived of the right to vote on the ballot-counting, such as leaving the place outside the ballot-counting place, or excluded the witness of the plaintiff's ballot-counting witness. Therefore, the plaintiff's above assertion is not reasonable, since it cannot be deemed that there was an error in violation of Article 114 of the Constitution or Article 181 of the Public Official Election Act in the management and execution of the instant election affairs.

4. Conclusion

The plaintiff's claim is without merit, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)