In a case where the head of a cooperative, etc. in charge of preparing an electoral register in an entrusted election of a fisheries cooperative confirms the occurrence of a reason for withdrawal from the cooperative, such as a loss of membership, and without following a resolution of the board of directors, makes an unqualified member enter into the electoral register in the electoral register, whether it constitutes “when a false fact is entered or makes another person enter such fact” as referred to in Article 63(2) of the Act on Commissioned Elections of Public Organizations

Article 63(2) of the Act on Commissioned Elections of Public Organizations, Etc. (hereinafter “Entrusted Election Act”) provides for punishing a person involved in preparing an electoral registry due to an act or omission by a person involved in preparing an electoral registry. According to Article 31(3) of the Fisheries Cooperatives Act, a fisheries cooperative shall make a decision on whether a person is eligible for membership in the case of a fisheries cooperative. Therefore, if the head of a cooperative, etc., who is in charge of preparing an electoral registry, knows that a cooperative member is formally recorded in the electoral registry, he/she shall confirm whether a reason for withdrawal from the partnership, such as loss of membership, etc., arises and implement the procedure for arranging the electoral registry following a resolution of the board of directors. If the head of a cooperative, etc., without taking the aforementioned measures, allows such cooperative member to enter the electoral registry in the electoral registry, then such act constitutes “when a false statement or makes another person enter any fact” as referred to in

Articles 15(1), 63(2), 31(2)1, and 31(3) of the Fisheries Cooperatives Act on Entrusted Elections by Public Organizations, etc.

Defendant

Defendant

Law Firm Jungwon, Attorney Kim Su-chul

Daegu District Court Decision 2015No5106 decided September 2, 2016

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 15(1) of the Act on Entrusted Elections by Public Organizations, Etc. (hereinafter “Entrusted Election Act”) provides that “A commission organization entrusted with the management of an election to elect executives, etc. shall set the period for preparing the electoral register and the date on which the electoral register becomes final and conclusive after consultation with the competent commission, and prepare and confirm the electoral register.” Article 63(1) of the same Act provides that “a person who makes the electoral register entered in the electoral register by a false means” shall be punished, and Article 63(2) of the same Act provides that “a person who is related to preparation of the electoral register fails to intentionally enter the electoral register or makes another person enter a false fact

Meanwhile, Article 31(3) of the Fisheries Cooperatives Act provides that “The district fisheries cooperatives shall confirm whether the whole or part of its members falls under any of subparagraphs of paragraph (2) (i) (ii) where they are not qualified as partners: where they are deceased; (iii) where they are declared bankrupt; (iv) where they are declared incompetent; (v) where they are dissolved; and (v) where they are dissolved.” In such cases, Article 25(2) and (4) of the Articles of incorporation of the ○○ Gun Fisheries Cooperatives (hereinafter “the cooperative of this case”) shall be determined by the resolution of the board of directors.”

Article 63(2) of the Commissioned Election Act provides for punishing an act of false entry in an electoral registry due to an act or omission by a person related to preparation of the electoral registry at an entrusted election of a public organization, etc.. In accordance with Article 31(3) of the Fisheries Cooperatives Act, a fisheries cooperative ought to determine whether a member is eligible for membership or not by a resolution of the competent board of directors. Therefore, if the head of a cooperative, etc., who is in charge of preparation of the electoral registry, knows that a cooperative member is formally entered in the electoral registry, he/she shall confirm the occurrence of a cause for withdrawal from the partnership, such as loss of a member’s qualification, and implement the procedure for arranging the electoral registry through a resolution of the board of directors. If the head of the cooperative, etc., without taking the aforementioned measures, intending to enter the same in the electoral registry in the electoral registry,

2. The lower court found the Defendant guilty of the instant facts charged on the following grounds.

A. The Defendant, the president of the instant association, is obligated to conduct a fact-finding survey on the qualifications of those registered on the list of partners pursuant to the provisions related to the Fisheries Cooperatives Act and the articles of association of this case, determine whether they are qualified as partners through a resolution of the board of directors, and prepare an electoral register based on the list

B. B. Before the election of the head of the instant association is held, the Defendant received a letter from the ○○ election commission and the National Federation of Fisheries Cooperatives to conduct the maintenance of unqualified partners several times, and confirmed the letter and approved the letter, and 76 persons listed in the attached list of crimes in the judgment of the court of first instance are aware of the fact that they are not actually engaged in fishery business or who reside outside of ○○○○ level and were not eligible for membership

C. After conducting a fact-finding survey on whether a person is qualified as an unqualified member, the Defendant did not convene a board of directors at one time to perform his/her duty, but did not rely only on the statement made by the head of the fishing village fraternity without any fact-finding survey, and arranged a register of its members formally. The Defendant did not perform his/her duty properly, sent the electoral register containing ineligible members to the ○○ Election Management Committee, and made the electoral register finalized as it is.

D. Even if a person ineligible for membership is formally registered on the list of members because he/she did not undergo a resolution by the board of directors, making such a member enter in the electoral register as an elector, constitutes an act of entering false facts in the electoral register as provided by Article 63(2) of the Commissioned Election Act.

3. Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court and the first instance court, the lower court’s determination is justifiable in light of the foregoing legal doctrine. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the establishment of a crime of violating Article 63(

4. The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)