2014Gohap549 Violation of the Local Education Autonomy Act

A

Park Sang-jin, leapment (public trial)

Attorney B

December 12, 2014

The defendant shall be innocent.

1. Summary of the facts charged in this case

On June 14, 2013, the defendant is the chairperson of "D" (hereinafter referred to as "D") organized by educational circles, such as retired teachers in the district of C, and the representative of "E group" promoting the simplification of the remuneration inclination of the C-Metropolitan Office of Education, which is enforced on June 4, 2014.

On April 17, 2014, from around 11:00 to around 13:00, the Defendant held a commemorative event for the 1 year anniversary of the establishment of DD (hereinafter referred to as the “instant event”) in the G-based land in F, the Defendant introduced 1, J, K, and L, the preliminary candidates of the C-Metropolitan City Superintendent of the C- office of education, introduced 1, J, K, and L, and provided the participants with food equivalent to KRW 3,49,000, and provided them with food equivalent to KRW 3,49,00.

As a result, the defendant made a contribution act for a person who wishes to be a candidate in relation to the election of the C-Metropolitan superintendent, which is held on June 4, 2014.

2. Defendant and his defense counsel’s assertion

The above food provision provides meals to participating members, etc. at the instant event, and it is not a contribution act for a person who intends to become a candidate in the C-Metropolitan City superintendent election.

3. Determination

The purpose of the Public Official Election Act prohibiting an act of contribution by a candidate, his/her family members, or a third party is to prevent such an act of contribution from being contributed to the creation of a foundation for supporting a candidate or from being associated with a purchase act, and if such act of contribution is allowed, it is likely that the election itself would lead to a candidate’s financial ability for the candidate rather than being an opportunity to evaluate his/her figures, dogs, policies, etc. (see, e.g., Supreme Court Decision 98Do477, Jul. 10, 1998).

In this purport, the following circumstances that can be recognized by the evidence adopted by the court of this case, namely, ① the defendant is the representative of the E Meeting organized by D's Chairperson, D's main axis, ② H's Secretary-General sent to D's members an expression of his and the defendant's gender to inform the date and place of the event in this case, and includes the contents of the simplification of the candidates for the superintendent of education's remuneration tendency. ③ Only the candidates for the superintendent of education, who participated in the unification of the candidates among the candidates for the superintendent of education, were present at the event in this case. ④ The candidates for the superintendent of education were introduced separately from the event in this case, ④ the progress of the unification of the candidates at the time of the past report on D's progress, and the fact that the defendant provided the candidate's salary tendency at the time of the event in this case, which was established on June 4, 2013.

However, an individual or organization’s expression of opinion on political and social issues is related to an election (see, e.g., Supreme Court Decision 2011Do3447, Jun. 24, 2011). Considering that an individual or organization’s free exchange of opinions and information on election issues are positive aspects that correspond to the essence of the election, such as verification of eligibility for public office, an individual or organization’s free exchange of information may not regulate such an act solely on the grounds that the act is related to an election and as a result of such an act is likely to cause an unfavorable impact on a specific candidate, and it is reasonable to view that such act may be subject to regulation only where it can be objectively considered as an active and planned act for the candidate of the election, taking into account the time, purpose, content, situation at the time of the act, and other social norms, etc. In addition, the Public Official Election Act imposes punishment or sanction on the other party to the contribution act (the recipient of the contribution act) and that the other party’s act is likely to contribute or block the candidate’s act of contribution in order.

In this regard, considering the following circumstances revealed in the process of the court's hearing, i.e., ① it is difficult to provide D's organization or organization organized solely for the election of the superintendent of education in view of the reasons for the establishment of D's political organization, its members, and activities among them, and there is considerable room to regard D's private group established for the purpose of presenting the direction of school education to contribute to the development of such group, ② it is difficult to give notice of the time and place of the event of this case to the candidates of the superintendent of education as part of H's text messages, but it is difficult to find out that H's act of providing remuneration-related information under the assistant principal of the Defendant and D's office of education as well as the fact that most of the candidates were present at the event of this case, 'the fact that most of the candidates were present at the meeting of the superintendent of education, such as the fact that the above candidates were present at the meeting of this case, but they did not refer only to or publicize the candidate's own interest in the election of the so-called candidate's office of education.

Ultimately, there may be room to view that Defendant et al. held the instant event with the intent of deliberation in order to support the election of the so-called candidate for the superintendent of education, and contributed the expenses required therefor. However, in light of objective circumstances such as the actual progress of the instant event, the present status of participants, the circumstances of providing food, size, etc., it is difficult to view that the instant event has the nature of election campaign for a specific candidate or other similar behavior beyond the bounds of ordinary private meetings to the extent that people sharing interests and opinions about social issues shared and exchanged information. Furthermore, it is difficult to evaluate that the provision of food at the instant event is an action to strengthen the support foundation of a specific candidate or to purchase the elector. Thus, Defendant’s act cannot be punished for violation of the provision prohibiting the act of donation.

4. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of crime, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

The new judge, new judge and new judge

Judge To call

Judges Il-il

1) The contribution of actual meal expenses was made by M, a consultant of D, but the person hosting the instant event is the defendant who is the chairperson of D, and M family meal expenses.

In full view of the background of contribution, the relationship between the defendant and M, etc., the subject of meal provision is the defendant.