[1] The meaning of "related to the recommendation of a political party as a candidate" and the standard for determining "related to the recommendation of a candidate" under Articles 47-2 (1) and 230 (6) of the Public Official Election Act, which are provisions prohibiting and punishing offering money, goods, etc. related to the recommendation of a candidate for a political party

[2] In a case where Defendant (the chairman of the local committee of Party A) was indicted on charges of violation of the Public Official Election Act on the ground that he received money in return for the recommendation of Party A by receiving money from Party B as a meal expense from Party B, the case holding that it is difficult to view that Defendant’s receipt of money from Party B constitutes a case where it can affect the recommendation of Party B as a candidate for Party B, regardless of its form, in light of all the circumstances, it is difficult to prove that Defendant’s receipt of money from Party B constitutes a case where it can affect the recommendation of Party B as a candidate for Party A

[1] Article 47-2 (1) of the Public Official Election Act provides that "any person shall not offer, express an intention to offer, or promise to offer money, valuables, or other property benefits, or public or private positions, or shall not receive such offer or consent to offer such offer in connection with the recommendation of a specific person as a candidate by a political party." Article 230 (6) of the same Act provides that "any person who violates Article 47-2 (1) or (2) shall be punished by imprisonment with labor for not more than five years or by a fine not exceeding 30 million won." Considering the language, contents, structure, legislative purpose, etc. of the above penal provisions, "in relation to the recommendation of a specific person as a candidate" means that the provision of money, valuables, or property benefits constitutes a case where the provision of money, valuables, or property benefits falls under the recommendation of a candidate or where it may affect the provision of such money, valuables, or property benefits in any form on the recommendation of

In addition, the determination of whether or not there is a candidate recommendation relation should be made reasonably in accordance with social norms by comprehensively taking into account various circumstances, such as the status of the parties involved in the receipt of money, goods, etc., the procedure and result of recommending candidates of the relevant political party at the time of receiving money, goods, etc., the timing and amount of receiving money, etc., the details and method of delivering money, etc.

[2] In a case where Defendant (the chairman of the local committee of Party A) was indicted for violation of the Public Official Election Act on the ground that he received money and valuables from Party A as a candidate for Party A’s candidate for Party A’s candidate for Party A’s local election, taking full account of all the circumstances such as the process of recommending candidates for Party A’s local council members, the circumstance leading up to receiving money and valuables, amount and time of receiving money, degree of specific influence of Defendant and Defendant C’s specific influence during the presidential election, it is difficult to view that the evidence submitted by the prosecutor alone alone proves that Defendant’s receipt of money from Party B constitutes a case where it could affect the recommendation of Party B as a candidate for Party A’s local council member, and then would help receive 450,00 won for Party B’s candidate recommendation, and that Defendant was indicted for violation of the Public Official Election Act, the case holding that the lower court erred by misapprehending the legal principles on the recommendation of Party B’s candidate for Party A’s local council member, and since it is difficult to view that the lower court erred in its determination as a candidate for Party’s candidate’s recommendation.

[1] Articles 47-2(1) and 230(6) of the Public Official Election Act / [2] Articles 47(2), 47-2(1), and 230(6) of the Public Official Election Act; Articles 307 and 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2009Do834 Decided April 23, 2009 (Gong2009Sang, 808) Supreme Court Decision 2008Do11040 Decided May 14, 2009 (Gong2009Sang, 930) Supreme Court Decision 201Do17163 Decided November 28, 2013

Defendant

Defendant and Prosecutor

Law Firm Datho et al.

Daejeon High Court Decision 2019No88 decided June 27, 2019

The guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the Daejeon High Court. The prosecutor's appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. Article 47-2(1) of the Public Official Election Act provides that "any person shall not offer, express an intention to offer, or promise to offer money, valuables, or other property benefits, or public or private positions, or shall not receive such offer or consent to offer such offer in connection with the recommendation of a specific person as a candidate by a political party." Article 230(6) of the same Act provides that "any person who violates Article 47-2(1) or (2) shall be punished by imprisonment for not more than five years or by a fine not exceeding 30 million won," (hereinafter collectively referred to as "the penal provisions in this case." Considering the language, content and structure of the penal provisions in this case, the legislative purpose thereof, "related to the recommendation of a specific person as a candidate" means a case where the provision of money, valuables or property benefits falls under the category of recommendation of a candidate, or even if not, it may affect the provision of money, valuables or property benefits in the recommendation of a candidate (see, e.g., Supreme Court Decision 2009Do4814, Apr. 29, 2009).

In addition, the determination of whether or not there exists a candidate recommendation relation should be made reasonably in accordance with social norms in full view of various circumstances, including the status of the parties involved in the receipt of money, goods, etc., the procedure and result of recommending candidates of the relevant political party at the time of receiving money, goods, etc., the timing and amount of receiving money, etc., the details and method of delivering money, goods, etc., and the advice and behavior of the parties before and after receiving money, etc. (see Supreme Court Decision 2011Do17163, Nov. 2

B. Based on the adopted evidence, the lower court determined that the Defendant received money and valuables from Nonindicted 1 in relation to Nonindicted 1’s recommendation of Nonindicted 1 as the candidate for △△△ Provincial Council Members (hereinafter “instant candidate”) on June 13, 2018, on the following grounds.

1) In the above local election, Nonindicted Party 1 received official ruling from (a party name omitted) and sought to leave the candidate for △△△ Provincial Council member in the above local election, and the Defendant was well aware of this.

2) In full view of Nonindicted 1 and Defendant’s statement, if Defendant (hereinafter “the chairman of the local committee”) was the chairman of the △△△△△ Party (hereinafter “the chairman of the Do party”) at the time of △△△△ Party (hereinafter “the chairman of the Do party”) and was a member of the National Assembly at the time, he would assist Nonindicted 2 in securing a friendly relationship, and Defendant and Nonindicted 1 would be able to receive a future public service, and Defendant demanded meal expenses to Nonindicted 1, and Nonindicted 1 also consented thereto and provided KRW 450,000 as meal expenses.”

3) The Defendant, for the past 20 years, was engaged in political activities under the jurisdiction of △△ (the name of the political party omitted), and was the regional chairman of the Do party branch office in △△ (the name of the political party omitted) from July 2016, and Nonindicted 2, as the chairman of the Do party in charge of the official election of the local council members, cannot be deemed to have no political influence on the official election of the instant candidate.

4) Although it does not seem that the above money is sufficient amount to be deemed as a consideration or case for public administration, considering the career, status and relation between the Defendant and Nonindicted Party 1, the political situation where the Defendant and Nonindicted Party 1 was faced with at the time of receiving the above money, the background leading up to giving and receiving the above money, the details of the Defendant and Nonindicted Party 1’s statement, and the political status and influence of the Defendant and Nonindicted Party 2, it constitutes a case where Nonindicted Party 1 provided and received KRW 450,00 to the Defendant for meal expenses with Nonindicted Party 2 and the Defendant on the recommendation of the instant candidate.

C. However, the lower court’s determination is difficult to accept. In light of the evidence duly adopted and examined by the lower court, it is difficult to view that the evidence submitted by the prosecutor alone proves that the Defendant’s receipt of the above money to Nonindicted 1 constitutes a case where it could affect Nonindicted 1’s recommendation as a candidate in the instant case, i.e., the recommendation process of the instant candidate, the content of the (party name omitted), the process of receiving money and valuables, the amount and timing of receiving money and valuables, and the degree of proof on the specific influence of the Defendant or Nonindicted 2. The specific reasons are as follows.

1) The penal provisions of this case aim at the development of a genuine representative democracy that guarantees the fairness and transparency of recommendation of candidates in a political party and represents the will of the people through the guarantee of fairness and transparency by prohibiting the receipt of money related to the recommendation of a candidate for a political party. Meanwhile, even if the above provisions are to restrict the freedom of political party activities guaranteed by the Constitution, such restrictions are meaningful as an institutional device to guarantee the freedom and fairness of election for public office, and they cannot be deemed to be in violation of the principle of proportionality under the Constitution in that they are limited on the premise that “a political party’s recommendation of a specific person as a candidate is satisfied” (see Supreme Court Decision 2008Do11040, May 14, 2009).

2) According to the legal principles as seen earlier, in order to evaluate that the Defendant’s receipt of the above money was “related to the recommendation of a specific person as a candidate by a political party,” the above money should fall under a case where the number of money received may have an impact on a candidate’s recommendation. The lower court affirmed this, and it is difficult to accept it for

A) We examine the process of recommending the instant candidate.

① Article 47(2) of the Public Official Election Act provides that a political party shall follow the democratic procedure stipulated by the party constitution or party regulations when recommending a candidate for public office.

② According to the party constitution and party regulations at the time when the defendant received the above money, it seems that the party's strategic contribution was impossible in relation to the selection of the candidate for City/Do Council members.

The strategic success is conducted only in cases determined by the party constitution and party rules (which may be limited to National Assembly members and the heads of metropolitan and basic local governments), through the procedures such as the review of the Central Strategic Space Committee, the selection of representatives of the political party, the resolution of the highest committee and the approval of the party affairs committee, etc. In the case of the election of City/Do Council members, there is no ground for the Do chairman of the City/Do Council to serve the candidates for City/Do Council members at his/her own discretion. Unless a competition candidate is recommended as a single candidate because he/she is disqualified, the candidates for City/Do

In fact, in the local election in 2014, the (political name omitted) △△△△△ City/Do party did not serve the strategic contribution at the election of City/Do Council members.

③ In 2018, the official recruitment process of the candidate for the △△△△△ Provincial Council member seems to have no difference from the previous one.

2018년 지방선거 당시 (정당명 생략) △△△도당의 이 사건 후보자 공천 과정은 다음과 같았다. ➊ 후보자검증신청자 접수 후 △△△도당 공직후보자 검증위원회의 검증심사, ➋ 예비후보자 등록, ➌ 중앙당 최고위원회의 △△△도당 공직후보자 추천관리위원회, 재심위원회, 선거관리위원회 구성, ➍ 공천접수 및 △△△도당 공직후보자추천관리위원회의의 공천면접 및 심사(단수 추천 또는 경선 의결), ➎ 중앙당 최고위원회의 권리당원 선거인명부 확정, ➏ △△△도당 상무위원회의 경선 후보자 및 경선방법의 확정, ➐ 경선 실시, ➑ 경선결과 발표 및 이의신청 처리(△△△도당 재심위원회), ➒ 중앙당 최고위원회의 의결 및 당무위원회의 인준 등의 절차를 통해 이 사건 후보자가 확정된다.

In other words, the candidate who obtained a majority of the valid votes by carrying out the presidential election at the time of multiple applicants, as the elected person.

In fact, in the local election in 2018, except where a fractional recommendation is made in the constituency of Si/Gun/Gu Council members within the jurisdiction of the △△△△ City/Do party, the candidate seems to have been decided to be a competition in all remaining constituency, including the first election district in Dol-si, in which Non-Indicted 1 applied for the election.

B) If the provision of Article 47(2) of the Public Official Election Act and the party constitution and party regulations are the same as above, in order to evaluate whether the Defendant received or not the above money in relation to the recommendation of a specific person as a candidate by a political party, it is necessary to carefully examine whether there is room for the actual process of the candidate in this case to operate differently from the above provision of the Act and the provisions of the Party, which reflects the autonomous will of the party members, and if any, what kind of case it is. However, the prosecutor’s proof that the Defendant and Nonindicted Party 2 may affect or excessively affect the candidate’s success at any stage of the decision process of the candidate in this case is insufficient.

① There is no objective data to measure how Non-Indicted 2 and the Defendant recommended a candidate as a single-party candidate with respect to the recruitment of the candidate in this case, which was scheduled for the intraparty competition, or had the power to make such a candidate, what influence was done in the candidate verification procedures and selection procedures, and what kind of political influence on the right party members in the competition procedures.

② Evidence submitted by the prosecutor to prove the specific influence of the defendant or non-indicted 2 with respect to the candidate's official recruitment shall be virtually due to the investigation report.

However, the above investigation report was prepared by the police officer in charge on the basis of the result of the conversation between the leader and the telephone of the △△-gu election commission in △△-gu, △△-gu, and the content thereof is merely a very vague-level subjective action that “as the defendant manages party members as the chairperson of the local election commission in △-gu, and may have an impact on the Do party chairperson on the Do party, it may have an interview related to the Gongcheon-gu.”

③ There is no ground to readily conclude that there is a possibility that the chairperson of the Do party or the chairperson of the regional chairperson may have a political influence on the process of forming a candidate’s will. This is because, depending on various circumstances, such as the personal position and position of party members, the degree of individual friendship with the chairperson, and differences in opinions on political and social issues at each time, it is easy for party members to easily expect cases where a decision is made differently from the chairperson’s position, and the relationship between the chairperson and party members may change at each time. Although the result is the result, Nonindicted 1, who provided the above money to the defendant, went away in the competitive process of the members of the Do party around April 2018.

Therefore, it is not reasonable to generally premise that the status of each chairperson of the above committee may directly affect the party members' selection process of candidates for public office. It is necessary to pay more careful attention to the recognition of such premise in the country where the application of the penal provisions of this case is to judge whether the defendant is guilty or not.

C) The lower court did not properly examine the aforementioned circumstances in determining whether the “party’s political party’s recommendation of a specific person as a candidate” as the constituent element of the instant penal provision. It appears that the Defendant and Nonindicted Party 1, at the time of giving and receiving the said money, mainly focused on the status of Nonindicted Party 2, and subjective perception or evaluation of political influence, dialogue between the two, and their desire or intent based thereon. However, it is difficult to accept the lower court’s determination even so, it is still difficult to accept.

Even according to the facts identified by the court below, it can be seen that Nonindicted Party 1 paid the above money to the defendant on the pretext of a meal job in which the two parties have accumulated a friendly relationship with Nonindicted Party 2 in a vague expectation that if the defendant accumulated a friendly relationship with Nonindicted Party 2, it would be helpful for their own future public order.

Considering the size of the money received by the Defendant, the time of receiving the money was about seven months prior to the date of competition for the recruitment of the instant candidate, and around six months prior to the date of receipt by the verification applicant, which begins with the recommendation procedure of the instant candidate, and Nonindicted Party 1 at that time planned to leave the instant candidate and did not publicly announce the intention of withdrawal definitely, it is difficult to evaluate that the money offered by Nonindicted Party 1 to the Defendant is related to the recommendation of the political party itself.

D. Nevertheless, the lower court found Defendant guilty of violating the Public Official Election Act due to the violation of the prohibition of accepting money or goods by recommending a candidate among the facts charged in the instant case on the grounds stated in its reasoning, without sufficiently examining and determining various circumstances necessary to determine whether the Defendant’s act satisfies the “related to the recommendation of a candidate” as a constituent element of the penal provision of this case. In so determining, the lower court erred by misapprehending the legal doctrine on relation to the recommendation of a candidate by a political party as provided in Article 47-2(1) of the Public Official Election Act, failing to exhaust all necessary deliberations,

2. As to the Prosecutor’s Grounds of Appeal

For the reasons indicated in its holding, the lower court upheld the first instance judgment that acquitted the Defendant on the violation of the Public Official Election Act due to the violation of the Act on Contribution-restricted Act by candidates, etc.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on contribution acts in violation

On the other hand, although the prosecutor appealed to the entire judgment of the court below, the prosecutor did not state the grounds of objection in the petition of appeal or appellate brief.

3. Conclusion

Therefore, the conviction part of the judgment below is reversed, and the case is remanded to the court below, and the prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok (Presiding Justice)