[1] In a case where money or valuables are provided in relation to an election campaign after the election day, whether the provision of money or valuables related to an election campaign under Article 230 (1) 4 of the Act on the Election of Public Officials and the Prevention of Unlawful Election (affirmative)

[2] The base point of time for the completion of the statute of limitations under Article 268 of the Act on the Election of Public Officials and the Prevention of Unlawful Election

[1] Article 135 (3) of the Public Official Election Act ("the Public Official Election Act") provides that anyone who is entitled to engage in an election campaign shall be allowed to engage in an election campaign, unless there is a special restriction on only the persons related to the election, such as political parties, candidates, and election campaign managers. Article 135 (3) of the Public Official Election Act provides that anyone who is appointed under Article 62 of the Public Official Election Act shall be allowed to pay the remuneration for the election campaign, and it aims to realize the fairness of the election by prohibiting the payment of the money or goods related to the election campaign other than statutory allowances and actual expenses. Article 257 (1) 2 of the former Public Official Election Act (Act No. 5127 of Dec. 30, 1995) provides that the penal provision for such violation shall be applied to the above violation, but it is questionable whether the period of restriction on the contribution is applied to the election campaign after the expiration of the statute of limitations for the election campaign under Article 230 (1) 4 of the Public Official Election Act.

[2] The main text of Article 268 of the Public Official Election Act provides that the statute of limitations for a crime under this Act shall expire after six months have passed since the relevant election day. In the event of changes in indictment, the completion of the statute of limitations under the Public Official Election Act shall be determined at the time of the initial indictment, and it shall not be based on the time of changes in indictment.

[1] Articles 62, 135(3), and 230(1)4 of the Act on the Election of Public Officials and the Prevention of Unlawful Election; Articles 257(1)2 (see current Article 230(1)4) of the former Act on the Election of Public Officials and the Prevention of Unlawful Election (Act No. 5127, Dec. 30, 1995) / [2] Article 298 of the Criminal Procedure Act; Article 268 of the Act on the Election of Public Officials and the Prevention of Unlawful Election

[2] Supreme Court Decision 80Do3245 delivered on February 10, 1981 (Gong1981, 13706), Supreme Court Decision 82Do535 delivered on May 25, 1982 (Gong1982, 623) Supreme Court Decision 91Do3105 Delivered on April 24, 1992 (Gong192, 170), Supreme Court Decision 2001Do2902 Delivered on August 24, 2001 (Gong201Ha, 2146)

Defendant 1 and one other

Defendants and Prosecutor

Law Firm Barun Law et al.

Seoul High Court Decision 2001No939 delivered on July 3, 2001

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the misapprehension of legal principles on the Defendants’ violation of the prohibition of offering money or goods related to election campaign

Article 135 (3) of the Public Official Election Act (hereinafter "Public Official Election Act") provides that anyone who is entitled to engage in an election campaign shall be allowed to engage in an election campaign, unless there is a special restriction on the persons related to the election, such as political parties, candidates and election campaign managers. Article 135 (3) of the Public Official Election Act provides that anyone who is eligible to engage in an election campaign shall be allowed to pay compensation only for persons appointed under Article 62 of the Public Official Election Act. Article 25 (3) of the Public Official Election Act intends to realize the fairness of election by prohibiting the payment of allowances and money or goods related to election campaign other than actual expenses. Article 257 (1) 2 of the former Public Official Election Act (Act No. 5127 of Dec. 30, 1995) provides that the penal provision for such violation shall also be applied to the above violation, but it is possible to resolve the violation of Article 230 (1) 4 of the Public Official Election Act after the amendment by Act No. 5262 of January 13, 1999, 1998.

Examining the relevant evidence in light of the records, the court below's decision that found the defendants guilty of violating the above legal principles as to each crime of violation of the prohibition of offering money or goods related to election campaign in the judgment against the defendants who provided money to voters under the pretext of money or consolation money to the deceased during the election period after the election day, is just in light of the above legal principles, and there is no illegality in the misapprehension of legal principles as to the interpretation and application of Articles 230 (1) 4 and 135 (3) of the Public Official Election Act. Since the result of the election or defeat is not clearly revealed after the election day, the above money cannot be deemed as money related to the election campaign, the defendants' ground of appeal is rejected.

2. As to the defendants' modification of indictment and misapprehension of legal principles as to the statute of limitations

Article 298(1) of the Criminal Procedure Act provides that "the public prosecutor may add, delete, or change facts charged or applicable provisions of Acts stated in the indictment with permission of the court, and the court shall permit it to the extent that the identity of the facts charged is not undermined." The purport of this provision is that the court shall permit the public prosecutor's application for changes of indictment unless the identity of the facts charged is disturbed (see Supreme Court Decision 75Do2712, Oct. 23, 1975). The identity of facts charged is maintained as it is in the same way in the basic social facts that form the basis of the facts. However, in determining the identity of basic facts, it shall be based on the defendant's act and social facts, with the same function as the identity of such facts, and shall also take into account normative elements of the indictment (see Supreme Court Decision 97Do3297, Jun. 26, 1998; 200Do1438, May 14, 199).

According to the records, as of November 24, 200, the prosecutor permitted the defendants as of November 24, 200 the charge of violation of the provision on prohibition of return after the election day to the defendants to change the facts charged and the applicable provisions of law as the charge of violation of the provision on prohibition of offering money and goods, and the first instance court as of the same day recognized the identity of the facts charged. The court below convicted the defendants as to the charges of violation of the provision on prohibition of offering money and goods in relation to election campaign after the amendment of the indictment. Since both facts before and after the amendment of the indictment are provided to the same defendant at the same time and at the same place as the same time and place for the same defendant, the social facts are identical and basic facts are identical, and there is no doubt about the identity of the facts charged, and there is no illegality in the misapprehension of legal principles as to the amendment of the indictment or the statute of limitations. The defendants'

3. As to the Prosecutor’s Grounds of Appeal

According to the records, it is reasonable that the court below determined that the defendants paid 18.5 million won among the expenses paid by defendant 2 to the denial of the Dong books and the Gu council members, etc. after the election day, and it cannot be deemed that the defendants paid for election campaign since they were paid as a return or reward to the Dong books and the Gu council members, etc. for the election period. Further, since the contribution-restricted period was over and paid, it does not constitute expenses paid in violation of the regulations on the contribution-restricted act, and therefore, it cannot be viewed as election expenses. The prosecutor's ground of appeal on

4. Conclusion

Therefore, all appeals by the Defendants and the Prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)