[1] In a case where it is unclear whether a person who made an act of donation is the person who made an act of donation under the Public Official Election Act, such as where the person who made an act of donation does not coincide with

[2] Meaning of the election campaign under Article 58 (1) of the Public Official Election Act, and whether the other party to the election campaign under the Public Official Election Act is limited to persons who are in the election district of a specific candidate or have relations with electors (negative)

[3] The meaning of "persons in the relevant constituency" and "persons who have relations with electors" under Article 113 (1) of the Public Official Election Act

[1] The act of donation under Article 112 (1) of the Public Official Election Act provides money and other valuables to a candidate or a person who intends to become a candidate with an intention to take the effect of the donation. It is a common example that the contributor becomes a person to make the donation. However, it is not limited to the actual contributor of the goods, etc. at all times, but it is not clear that the contributor is the person to make the donation because it does not coincide with the contributor and the person to make the donation or is involved in the act of donation in the appearance of the appearance of the donation. In case where it is not certain that one party is the person to make the donation, it is required to identify the person to make the donation by taking into account all the circumstances such as the motive and purpose of the contribution, the process of the act of donation, the relationship between the donor and the person to make the donation and the person to receive the

[2] An election campaign under Article 58 (1) of the Public Official Election Act refers to all acts that are necessary or favorable for the election or defeat of a specific candidate, and that are objectively recognized with the objective of promoting the election or defeat of a specific candidate. It is distinguishable from an act in preparation for a future election campaign or ordinary political party activities. However, in determining whether a certain act constitutes an election campaign, it shall be determined whether the act is accompanied by the election or defeat of a specific candidate by comprehensively observing not only the name of the act, but also the form of the act, place, method, etc. of the act. Unlike the case of the Public Official Election Act and the Public Official Election Act, the other party in the election campaign is not limited in the case of "election campaign", and therefore, it shall not be deemed that the other party in the election campaign is within the constituency of a specific candidate to promote the election or defeat of a specific candidate, or a person, institution, organization, facility, etc. which is related with the electorate.

[3] Article 113(1) of the Public Official Election Act prohibits the act of donation to the "person in the relevant constituency" and the "person who has relations with the electorates even if outside the relevant constituency," respectively. The "person in the relevant constituency" includes not only the person who has a domicile or residence in the constituency but also the person who temporarily stays in the constituency; and the "person who has relations with the electorates" means a person who has a certain blood or personal relationship with the electorates, such as his family, relatives, Gu, workplace, workplace, workplace, common bond, native folks' meeting, alumni meeting, relatives' meeting, etc., and thus may directly or indirectly affect the decision-making of the electorates, regardless of the reason for such connection.

[1] Article 112 (1) of the Public Official Election Act / [2] Article 58 (1) of the Public Official Election Act / [3] Article 113 (1) of the Public Official Election Act

[1] Supreme Court Decision 2006Do3028 Decided August 24, 2006, Supreme Court Decision 2003Do3028 Decided March 28, 2003 / [2] Supreme Court Decision 2003Do305 Decided July 8, 2003 (Gong2003Ha, 1743), Supreme Court Decision 2005Do301 Decided October 14, 2005 (Gong2005Ha, 1818) / [3] Supreme Court Decision 96Do500 Decided November 29, 196 (Gong1997Sang, 260), Supreme Court Decision 2005Do8250 Decided January 26, 2006

Defendant

Defendant and Prosecutor

Law Firm Barun, Attorneys Park Jae-sik et al.

Gwangju High Court Decision 2006No323 Decided December 7, 2006

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the grounds of appeal by defense counsel

A. As to the grounds of appeal Nos. 1 and 2

In a case where there is no concern that the defendant's exercise of his right of defense may be seriously disadvantaged, it is not unlawful to recognize facts different from the facts stated in the facts charged or the indictment without going through the procedures for modification of indictment, to the extent that the basic facts of the facts charged are the same (see Supreme Court Decision 2003Do5114, Jan. 27, 2004; Supreme Court Decision 2006Do1667, Jun. 15, 2006).

In addition, the act of contribution under Article 112 (1) of the Public Official Election Act provides money and other valuables to a candidate or a person who intends to become a candidate with an intention to take the effect of the contribution. It is common sense that the contributor becomes a person to make contribution, but the person who is the person who is assessed as a person to make contribution is not limited to the actual contributor of the goods, etc. at all times, and in cases where it is not clear that either party is a person to make contribution because it does not coincide with the contributor and the person to make contribution or it appears as being engaged in the act of contribution together with the external appearance, it is not clear that the person is a person to make contribution, taking into account all the circumstances such as the motive or purpose of the contribution, the process in which the contribution was made, the relationship between the donor and the person who made the contribution and the person who received the contribution (see Supreme Court Decision 2003Do502, Mar. 28, 2003; 2006Do328, Aug. 24, 2006).

With respect to the violation of the Public Official Election Act through the Defendant’s contribution act, the facts charged are that the Defendant provided meals to persons in the constituency of the Defendant or having relations with the electorates, and the payment of meal expenses by a certain method does not constitute part of the facts charged or the premise stated in the indictment (Provided, That it shall be considered as one of the circumstances that should be taken into account in specifying the contributioner), and even if it is different from this, the basic facts of the facts charged do not vary depending on how the above meal expenses are paid by a certain method, and the Defendant is not a contributioner in the first instance court and the lower court, and the violation of the Public Official Election Act due to the above contribution act was practically disputed. Accordingly, the lower court acknowledged the Defendant’s conviction as to the violation of the Public Official Election Act due to the Defendant’s contribution act (19 persons) in the facts charged as stated in its reasoning, and it does not constitute an unlawful act of recognizing the facts charged or causing substantial disadvantage to the Defendant’s exercise of his right to defense, as alleged in the grounds of appeal.

In addition, the court below acknowledged the facts as stated in its reasoning based on the employment evidence, and found the defendant's act of providing meals to 51 employees of non-indicted 1 corporation who work for the vice president, and judged that the act of providing meals to 19 employees residing in the election district of the defendant among the above employees constitutes a contribution act to the defendant's voters who are local council members, and convicted him of the violation of the Public Official Election Act due to the defendant's contribution act on this part. In light of the records, the examination of evidence selection, fact-finding and decision of the court below is just, and there is no error of law such as misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to contribution acts

B. Ground of appeal No. 3

This part of the grounds of appeal is not legitimate grounds of appeal since it was brought before the final appeal. According to the records, it is difficult to view that the defendant's act of making an act of making an act of making an act of making an act of donation to the employees of the non-indicted 1 Co., Ltd., his own electorate does not violate the social rules. Thus, this part of the grounds of appeal cannot be seen as a part

C. As to the grounds of appeal Nos. 4 and 5

The election campaign under Article 58 (1) of the Public Official Election Act refers to all acts necessary and favorable for the election or winning of a specific candidate, which are objectively recognized by the intention of promoting an election or defeat in the election. It is distinguishable from the act of preparing an election campaign in the future or ordinary political party activities. However, in determining whether a certain act constitutes an election campaign, it shall be determined whether the act is accompanied by an election campaign for the purpose of promoting the election or defeat of a specific candidate by comprehensively observing not only the name of the act, but also the form of the act, the place, and the method of the act, etc., in order to determine whether the act is an election campaign (see Supreme Court Decisions 2003Do305, Jul. 8, 2003; 2005Do301, Oct. 14, 2005). Thus, unlike the act of donation under the Public Official Election Act, it is not restricted to the other party in the election campaign, and therefore, it shall not be deemed that the other party to the election campaign belongs to a specific institution or organization that is an elector.

The court below acknowledged the facts based on its employment evidence, and found the defendant guilty of the violation of the Public Official Election Act due to an election campaign against 51 employees of non-indicted 1 corporation who work as vice president. In light of the records, the court below's selection of evidence, fact-finding and decision are justified, and there is no error of law such as misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to election campaign under the Public Official Election Act, as argued in the Grounds for Appeal.

2. As to the Prosecutor’s Grounds of Appeal

A. As to the first ground for appeal

In light of the circumstances acknowledged by the evidence duly admitted, the court below held that it is reasonable to view that the statement made by the non-indicted 2 and 3 to the effect that the meal cost of this case was settled by the corporate card of the Gwangju Metropolitan City Council, in which the defendant was employed by the ordinary defendant, is not reliable, and the remaining evidence submitted by the prosecutor alone is insufficient to recognize it, and there is no other evidence to recognize it, and rather, it is reasonable to regard that the meal cost of this case was paid from the business promotion expenses of the non-indicted 1 corporation working as vice president. In light of the records, the court below's selection of evidence, fact-finding and determination in the court below is just, and there is no error

Ultimately, this part of the grounds of appeal is without merit since it erred by the selection of evidence and fact-finding, which are the exclusive authority of the lower court, and thus, cannot be accepted.

B. Regarding ground of appeal No. 2

Article 113(1) of the Public Official Election Act prohibits an act of donation to a person who is located in the constituency concerned and a person who has relations with the electorate in the constituency concerned even if the person has been outside the constituency concerned. Here, the term "person in the constituency concerned" includes not only the person who has a domicile or residence in the constituency but also those who temporarily reside in the constituency (see Supreme Court Decision 96Do500, Nov. 29, 1996; 2005Do8250, Nov. 26, 2006; 2005Do8250, Nov. 26, 2006). The term "person who has relations with the elector" means a person who has a certain blood or personal relationship with the elector concerned, such as his family, relative, relative, workplace, alumni, alumni, alumni meeting, relatives meeting, etc., and is likely to directly or indirectly affect the decision-making of the elector, regardless of whether there is any reason for such relation (see, e.g., Supreme Court Decision 2005Do82506).

As to the violation of the Public Official Election Act by a person (32 persons) who does not reside in the election district of the defendant among the facts charged in this case, the court below acquitted him of this part on the grounds that there is no evidence to support that the other party to the contribution act is located in the election district of the defendant, or is a person who may directly or indirectly affect the decision-making of the defendant by the electorate, and constitutes a "person who has a relation with the elector". In light of the records, the above decision of the court below is just and acceptable, and there is no error of law by misunderstanding the legal principles as to the other party to the contribution act under Article 113 of the Public Official Election Act, as

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

Justices Kim Yong-dam (Presiding Justice)