[1] In a case where it is unclear whether the person who made an act of donation is the person who made an act of donation under the Public Official Election Act, such as the difference between the person who made an act of donation and the person who made an act of donation, the method to specify the person who made an act of donation / Whether the act of donation constitutes a person who has ownership or right to dispose of the goods provided by the person

[2] Meaning of “election” under the main sentence of Article 115 of the Public Official Election Act / Whether an act of receiving money and valuables in order to support a person who has a right to participate in the election in the relevant election district or has relations with the electorate at the same time, constitutes a contribution act prohibited under Article 115 of the Public Official Election Act (affirmative)

[1] The act of donation under Article 112(1) of the Public Official Election Act is a case in which a person who intends to become a candidate or a person who intends to become a candidate provides money, goods, etc. to a candidate under Article 112(1) of the Public Official Election Act. However, the person who is the subject of the contribution which is assessed as having made the contribution is not always limited to the actual contributor of the goods, etc. In a case where it is not clear whether the person is the person who made the contribution because it is inconsistent with the person who made the contribution or it appears as being involved in the act of donation, the person who made the contribution should be designated by taking into account all the circumstances such as the motive and purpose of the contribution, the process of the contribution, the relationship between the donor and the person who made the contribution, and the person who received the contribution. Accordingly, the person who violated Article 115 of the Public Official Election Act is sufficient to be considered as the person who has the right to ownership or disposition of the goods provided.

[2] The first sentence of Article 115 of the Public Official Election Act provides, “No person shall make, or have another make, any contribution to an election for a candidate (including a person intending to become a candidate) or political party (including a preparatory committee for the formation of a new political party) to which he/she belongs, even though he/she is not provided for in Article 113 (Restriction on Contribution by Candidates, etc.) or Article 114 (Restriction on Contribution by Political Parties and Family Members, etc.).” The term “election” refers to one which is related to the election in question, such as motive for, or borrowing, the relevant election, even if it is not

In addition, Article 1 of the Public Official Election Act provides that "the purpose of this Act is to contribute to the development of democratic politics by ensuring that elections prescribed by the Constitution of the Republic of Korea and the Local Autonomy Act are held fairly in accordance with the free will of the people and democratic procedures and by preventing any malpractice related to such elections," Article 7 provides that the political party is entitled to recommend candidates to run in the election of political parties and candidates, and Article 47 (1) provides that "any political party is entitled to recommend candidates to run in the election of political parties in accordance with paragraph (1) of this Article" and Paragraph (2) of the same Article provides that "a political party is permitted to recommend candidates to run in the election of political parties in accordance with paragraph (1) of this Article" shall follow democratic procedures, taking into account the fact that the election of candidates to run in the election of political parties is a part of the system that enables the election of candidates to run in the election of political parties in accordance with the free will of the people and democratic procedures, so ultimately, the election of political parties is related to the relevant election of public officials.

[1] Articles 112(1), 115, and 257(1)1 of the Public Official Election Act / [2] Articles 1, 7, 47(1) and (2), 113, 114, 115, and 257(1)1 of the Public Official Election Act

[1] Supreme Court Decision 2007Do9507 Decided March 13, 2008 (Gong2008Sang, 545), Supreme Court Decision 201Do3862 Decided July 14, 201 (Gong2011Ha, 1701) / [2] Supreme Court Decision 96Do405 Decided June 14, 1996 (Gong196Ha, 2280), Supreme Court Decision 2012Do15497 Decided April 11, 2013

Defendant

Defendant

Law Firm Sobin et al.

Seoul High Court Decision 2019No427 decided September 6, 2019

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. A. 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, and such person becomes a contributor under Article 112(1) of the Public Official Election Act. However, the contribution person who is the person who is assessed as having made the contribution is not always limited to the actual contributor of the goods. If it is unclear that one party is the contribution person because it is not consistent with the contributor or as it appears to be engaged in the contributions in external form, it shall be designated as the contribution person in full view of all the circumstances such as the motive or purpose of the contribution, the process of the contribution act, the relationship between the donor and the person who has made the contribution, and the person who has received the contribution. Accordingly, if the person who has violated Article 115 of the Public Official Election Act is a person who is assessed as the contribution person, it is sufficient that the person who has the right to own or dispose of the goods provided is not a person who has the right to do so (see Supreme Court Decision 20138Do167, 20137. 14.

B. The first sentence of Article 115 of the Public Official Election Act provides, “No person, even though not provided for in Article 113 (Restriction on Contribution by Candidates, etc.) or Article 114 (Restriction on Contribution by Political Parties and Family Members, shall make, or have another make, any contribution to an election for a candidate (including a person intending to become a candidate) or political party (including the preparatory committee for the formation of a new political party) to which he belongs,” the first sentence of Article 115 of the Public Official Election Act provides, “No person shall make, or have another person make, any contribution to the election in question.” The term “election” refers to

In addition, Article 1 of the Public Official Election Act provides that "the purpose of this Act is to contribute to the development of democratic politics by ensuring that elections prescribed by the Constitution of the Republic of Korea and the Local Autonomy Act are held fairly in accordance with the free will of the people and democratic procedures and by preventing any malpractice related to such elections," Article 7 (a) provides that a political party may recommend candidates to run in an election for public office pursuant to paragraph (1) of this Article, and Article 47 (2) provides that "a political party shall recommend candidates to run in an election for public office, pursuant to paragraph (1) of this Article, democratic procedures shall be followed if a political party recommends candidates." In light of the fact that an election for public office according to democratic procedures within a political party is reported as part of the system that enables a candidate to run in an election for public office to run in an election for public office in accordance with the free will of the people and democratic procedures, and ultimately, the election for public office is related to the election for public office, and therefore, it is ultimately prohibited that a third party has the right to run in an election for public office 16.4.

2. For reasons indicated in its holding, the lower court upheld the first instance judgment convicting the Defendant of the instant charges on the ground that the Defendant, rather than a mere delivery of money and valuables, constitutes a contribution act, which is the subject of violation of Article 115 of the Public Official Election Act, and that the primary election is related to the pertinent public election, and that the Defendant, as the primary election, included regional standing members in the primary election to select the order of candidates for the instant proportional representative election, made a contribution act in order to have the Nonindicted Party elected the Nonindicted Party as the first candidate for proportional representative, was the Defendant made a contribution act on behalf of the Nonindicted Party.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by violating the legal doctrine on the scope of application under Article 115 of the Public Official Election Act, and the subject

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

Justices Park Jung-hwa (Presiding Justice)