[1] Whether the facts charged in violation of Article 254 (2) 4 of the Act on the Election of Public Officials and the Prevention of Unlawful Election can be examined and determined as criminal facts of the prior election campaign in violation of Article 254 (3) of the same Act without changing the indictment (affirmative)

[2] The legislative intent of the proviso of Article 89(1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election, and the scope of similar institutions prohibiting establishment

[3] The effects of the Constitutional Court's decision of unconstitutionality on Article 221-2 (2) of the Criminal Procedure Act, which provides the system of examination of witness before the first trial date, and the admissibility of the protocol of examination of witness prepared in accordance with Article 221-2

[4] A person subject to the restriction on contribution to an election under Article 257 subparagraph 1 of the Act on the Election of Public Officials and the Prevention of Unlawful Election, and a person who has no status, shall be punished as a joint principal offender of the same constituent element (negative)

[5] The elements of violation of the prohibition of contribution act under Article 112 of the Act on the Election of Public Officials and the Prevention of Election Illegal Acts and the grounds for exclusion of illegality

[6] Whether the illegality of an act of a subordinate officer of an election organization receiving money and valuables from a candidate as expenses for activities, etc. and using such money and valuables as expenses for congratulatory investigation against electorates is excluded (negative)

[1] In comparison with Article 254(2) and (3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election, both provisions are the same in that "act of conducting or making another person conduct an election campaign before the election campaign period" is the core element of the elements of the election campaign. However, Article 254(2) provides that the election campaign method in which the illegality seems relatively large shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding four million won, while Article 254(2) provides that if a method other than the method provided in the above paragraph(2) is used, imprisonment with prison labor for not more than one year or by a fine not exceeding two million won shall be punished by a fine not exceeding two million won, and therefore, it is justified in the judgment of the court below that the basic fact is only an aggravated element for the so-called of the same advance election campaign, and it does not cause any disadvantage to the defendant and thus, it is entirely justified.

[2] The proviso of Article 89(1) of the Act on the Election of Public Officials and the Prevention of Election Malpractice allows the establishment of a political party's central party and one election campaign organization and a supporters' association under the Political Funds Act established in the Central Party, City/Do branch and district party office. The reason is that the political party's election campaign organization has a strong internal nature of political party's internal organization with the basic purpose of participating in the formation of the political will by recommending or supporting candidates to run in an election for public office, while the political fund supporters' association protects the political fund fund fund fund fund in the election period under the Political Fund Act. Such an organization of a political party also supports, recommends, or oppose a specific candidate including a candidate who is a party member in its name during the election period. On the other hand, if it maintains the fairness of an election campaign organization among the candidates, and if it constitutes an excessive competition and waste due to establishment of various forms of election campaign organizations, the establishment of any institution, organization, or facility is not established for the purpose of election campaign, and if it is not established for any specific candidate's election campaign, it does not directly or indirectly included in an election campaign.

[3] In the decision of the case 94Hun-Ba1 delivered on December 26, 196, the Constitutional Court sentenced that the part concerning Article 221-2 (2) and (5) of the Criminal Procedure Act, which provides the witness examination system prior to the first trial date, is unconstitutional, and such decision of unconstitutionality also remains effective at the court at the time of such decision. If there are circumstances where it is difficult to view that the defendant was present as a suspect at each witness examination procedure prior to each trial date, but the opportunity for attack and defense was sufficiently guaranteed, the prosecutor's protocol of witness examination prepared by requesting the witness examination prior to the first trial date, considering concerns about the witness's change of statement, shall be admissible as evidence collected by infringing the right to a fair and prompt open trial as a result, although the examination was conducted in front of a judge, Article 27 of the Constitution shall not be admissible as evidence.

[4] The crime of violation of the restriction on contributions under Article 257 (1) 1 of the Act on the Election of Public Officials and the Prevention of Election Unlawful Act is established only when a person who is not recognized as a person subject to the contribution act acts in collusion with the person subject to the contribution act, and thus, it cannot be interpreted by analogical interpretation under the principle of no punishment without law. Thus, the contribution act by a person without each of the above status is not a crime of violation of the pertinent provisions of the Act. Further, the separate provisions of each of the above provisions of the Act and each of the requirements for the restriction on contributions are different according to the person subject to the contribution act and the person subject to it. The purport of each of the above provisions is to punish each of the persons subject to the contribution act as a joint principal offender of the relevant Act, and even if a person who is not recognized as a person subject to the contribution act made a contribution in collusion with the person subject to the contribution act, it shall not be punished as a joint principal offender of each relevant Act.

[5] Article 112 (1) of the Act on the Election of Public Officials and the Prevention of Election Unlawful Act comprehensively prescribes the kind of contribution act subject to punishment under paragraph (1), and then lists the case where the act of offering money, goods, etc. falling under Article 112 (1) of the same Act is not considered a contribution act as a formal or official act under paragraph (2) of the same Article, and Article 257 (1) of the same Act to punish a violation of the prohibition of contribution by candidates, unless the act of offering money, goods, etc. falling under Article 112 (2) of the same Act does not constitute a formal or official act according to the National Election Commission Regulations and its decision-making based on the above provision of the same Act. However, if the contribution act by candidates, etc. falls under a formal or official act under Article 112 (2) of the same Act even if it does not fall under such act, if it can be deemed that it is within the scope of social order created historically, it shall be dismissed as it does not violate social rules

[6] An act of a subordinate officer of an election organization receiving money and valuables from a candidate for activities, etc. and using them as a congratulations for the electorates shall not be deemed to be an act of blocking illegality within the scope of social order created historically as one of the normal forms of living, which is extremely normal form of social order.

[1] Article 254(2)4 and (3) of the Act on the Election of Public Officials and the Prevention of Unlawful Election, Article 298 of the Criminal Procedure Act / [2] Article 47(2) of the Constitutional Court Act, Article 221-2 of the Criminal Procedure Act, Article 27 of the Constitution / [4] Articles 113, 114, 115, and 257(1) of the Act on the Election of Public Officials and the Prevention of Unlawful Election, Article 33 of the Criminal Act / [5] Articles 112(1) and 257 subparag. 1 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [6] Articles 112(1) and 257 subparag. 1 of the Act on the Election of Public Officials and the Prevention of Unlawful Election / [3]

[1] Supreme Court en banc Decision 68Do995 delivered on September 19, 1968 (No. 16-3, 13), Supreme Court Decision 84Do1403 delivered on September 11, 198 (Gong1984, 1679), Supreme Court Decision 84Do1767 delivered on October 10, 1984 (Gong1984, 1824) / [3] Supreme Court Decision 88Do1399 delivered on March 14, 198 (Gong1989, 6419), Supreme Court Decision 90Do1979 delivered on September 25, 190 (Gong1990, 22979, 197Da13979 delivered on September 16, 197)

Defendant 1 and 21 others

Defendants

Attorney Lee Han-woo

Daegu High Court Decision 96No599 delivered on August 12, 1997

The part of the lower judgment against Defendant 2 and 3 is reversed, and that part of the case is remanded to the Daegu High Court. Defendant 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22 are all dismissed.

1. Defendant 1’s ground of appeal is examined.

A. As to the trial without changes in the indictment

The court below acknowledged Defendant 1 as a violation of Article 254(3) of the Act without following the amendment procedure of amendment to Bill of Indictment as to "the provision of money or goods by requesting the co-defendant of the first instance trial, Defendant 21, and 22 to engage in election campaign in order to build a foundation for support by acquiring human resources within the region" among the prior election campaign by Defendant 1.

In comparison with Article 254(2) and (3) of the Act, both provisions are the same in that "an act of election campaign or having another person carry out an election campaign before the election campaign period" is the core element of the elements. However, Paragraph (2) is different in that "an act of using propaganda facilities, tools, or various printed materials" ( Subparagraph 1), "an act of using broadcasts, newspapers, communications or magazines or other publications" ( Subparagraph 2), and "an act of establishing an organization for election campaign or creating private organizations" ( Subparagraph 4) which seems to be relatively large in illegality, and thus, they are punished by imprisonment with prison labor for not more than two years or by a fine not exceeding four million won, while Paragraph (3) is just in that there is no violation of the legal principles as to the amendment of a bill of indictment which guarantee the defendant's right to a prior election for not more than one year or a fine not exceeding two million won, and there is no violation of the basic principles as to the amendment of a bill of indictment by the court below as stated in the above.

B. As to the violation of the prohibition of installation by the relevant agency

Since the theory of lawsuit exceptionally permits the establishment of an election countermeasure organization for political parties under the proviso of Article 89(1) of the Act, it shall be reasonable to view that the establishment of an institution to prepare candidate and election campaign rather than election campaign in accordance with the principle of equality does not constitute an act prohibited under the above provision of the Act. In this case, Defendant 1 established a Seongdong Development Research Institute around October 1995 and performed the act of preparing candidate and preparation for election to the new Korean National Assembly member in preparation for the case where he is selected as a candidate for the new Korean National Assembly member at that place, it is merely an act of setting up a similar institution under Article 89(1) of the Act.

However, the proviso of Article 89(1) of the Act permits the establishment of one election countermeasure organization and one supporters' association under the Political Funds Act established in the central party, City/Do branch and district party office. The basic purpose of which is to participate in the formation of the political will of the people by recommending or supporting candidates to run in the election for public office is to protect political funds within the nature of the political party's internal organization, while the political fund supporters' association is also able to collect political funds during the election period under the Political Funds Act. Such an organization of a political party also supports, recommends or oppose a specific candidate including a candidate who is one of the party members in its name. Meanwhile, this Article maintains the fairness of an election campaign organization among the candidates, and it is a provision to prevent heating competition and waste caused by the difficult establishment of various forms of election campaign organizations, and therefore, it does not violate the purpose of this Article, unless established for the purpose of pure election campaign by a specific candidate, but it does not constitute a violation of the Act on Election Campaign, which does not directly or indirectly require the establishment of an election campaign organization or its facilities to be included in the election campaign.

According to the records, Defendant 1 established a sexual development research institute prior to the election campaign period, and actually used it as an election office, and recognized that the purpose of establishing such a facility or organization is to use it for the election campaign for the 15th National Assembly member who will go to the candidate, and therefore, there is no reason to argue that the establishment of the research institute is merely a preparation for election campaign.

C. As to the mistake of facts against the rules of evidence

Of the evidence of the first instance court which cited as evidence of guilt against the facts constituting the crime of Defendant 1, the Daegu District Court rendered a decision that the part concerning the examination of witness in Article 221-2 (2) of the Criminal Procedure Act (amended by Act No. 2450 of Jan. 25, 1973) was unconstitutional, and the effect of such decision of unconstitutionality was pending in the court at the time of the decision, and it was prepared by the prosecutor at the time of requesting the examination of witness before the first trial pursuant to Article 221-2 (2) of the Criminal Procedure Act, which provides for the examination system prior to the first trial date at the time of the first trial date at the time of the decision of December 26, 1996, and Article 221-2 (2) and (5) of the Criminal Procedure Act (amended by Act No. 2450 of Jan. 25, 1973) which provides for the examination of witness before the first trial date at the time of the decision of unconstitutionality as to Defendant 2.

Although the court below is erroneous in finding the above witness examination protocol as evidence of guilt, since the evidence adopted by the court of first instance as cited by the court below and the evidence added by the court below are recorded, comparison and examination can be sufficiently recognized for the crime of this case against Defendant 1 only by the remaining evidence except the above witness examination protocol, the above illegality of the court below does not affect the conclusion of the judgment, and there is no error of law that found the facts erroneous in violation of the rules of evidence such as the theory of lawsuit, and there is no reason to see this conclusion.

2. We examine Defendant 2 and 3’s grounds of appeal.

A. As to the mistake of facts against the rules of evidence

The evidence admitted by the court of first instance as cited by the court below can be recognized as facts of each of the crimes of this case, which held against the defendant 2 and 3 upon recording, comparison, and examination, and there is no error of law by misunderstanding facts against the rules of evidence such as theory of lawsuit. All arguments are without merit.

B. Regarding the legal scenarios about joint principal offenders of the crime of violating the restriction on contributions

The court below affirmed the judgment of the first instance that found Defendant 2 and 3 guilty of the facts constituting the crime for which each contribution act was made in collaboration with Defendant 1 in accordance with Article 257(1)1 and Article 113 of the Act, and Article 30 of the Criminal Act.

However, Article 257 (1) 1 of the Act provides that each person who violates the restriction on contribution acts shall be punished by dividing them into "persons who violate the provisions of Article 113 (1) or 114 (1) or 115 (2)." Article 113 as to the subject of contribution acts corresponding to the objects of the above crimes is "political party (including a person intending to become a candidate)", a candidate (including a preparatory committee for the formation of a new political party), his lineal ascendant or descendant and sibling, a spouse of the candidate, an election campaign manager, a chief of the election campaign liaison office, an accountant in charge, an election campaign speechmaker, or his family members (referred to as "family members of the candidate" as provided in Article 10 (1) 3), and each of the juristic persons or organizations related to the election, regardless of the purpose of Article 115 (1) 16 (1) of the Act, and each of them shall be punished by "election act acts" as provided in Article 97 (15).

Therefore, inasmuch as the above Defendants are not candidates or candidates, and are not their spouses, even if each of the above Defendants’ contribution acts was made in collusion with Defendant 1, it cannot be punished on the ground that they violated Articles 257(1)1 and 113 of the Act, at least the above Defendants violated Article 257(1)1 and Article 113 of the Act. However, the judgment of the court below which recognized the above Defendants as crimes and punished by the above Defendants is erroneous in the misapprehension of legal principles as to the subject of the crime of violation of the restriction on contribution, or the co-principal, and there is a reason to point out this issue

3. Each of the grounds of appeal by Defendant 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22 are examined.

Article 112 of the Act comprehensively provides for the types of contributions subject to punishment under Article 112(1) and, in light of the method of the provision of such Acts and subordinate statutes, where the act of offering money, goods, etc. falling under Article 112(1) of the Act does not fall under the ordinary or official acts, it shall be deemed that the act constitutes a constituent element of Article 257(1) of the Act punishing a violation of the prohibition of contribution by candidates, etc. unless the act of offering money, goods, etc. falling under Article 112(2) of the Act does not fall under Article 112(2) of the Act and Article 112(2) of the Act and Article 257(1) of the Act. However, even if a contribution act by candidates, etc. falls under the ordinary or official acts, if it can be deemed that it is within the scope of social order created historically, it shall be deemed that the act is a kind of courtesy or official duties, and its illegality is dismissed (see Supreme Court Decision 96Do1768, Dec. 10, 196).

If the evidence adopted by the court of first instance as cited by the court below is recorded, comparison and examination, it can be acknowledged that the defendants received money or goods from Defendant 1, etc. under the pretext of activity expenses or club formation expenses, and there is no error of finding any facts contrary to the rules of evidence, such as theory, and even if part of the money or goods provided by the above defendants were paid as congratulatory investigation expenses to the electorate within the scope of the ordinary amount, such as theory in the name of Defendant 1 or his own name, it cannot be viewed that the act of receiving money or goods constitutes an act of courtesy or official duty, which is permissible under Article 112 (2) 1 of the Act, and the purpose of the law prohibiting and restricting the act of donation is to prevent the right of vote accompanying the provision of money or goods and to ensure the fairness of election by preventing various illegal elements related thereto, and therefore, it cannot be viewed that there is no reason to view that the election organization's subordinate officer received money or goods from the candidate as activity expenses and use them for the electorate as a normal form of social order.

4. Thus, the judgment of the court below on the crime of violation of the restriction on contributions by Defendants 2 and 3 cannot be maintained as it is. Since the court below imposed one punishment on the defendants as to each prior exercise of the preceding part of Article 37 of the Criminal Act as concurrent crimes in the judgment against them, the part against the above defendants shall be reversed in its entirety and the case shall be remanded to the court below. The remaining defendants' appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)